Lake Macquarie City Council v Jones
[2023] NSWPICMP 50
•20 February 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lake Macquarie City Council v Jones [2023] NSWPICMP 50 |
| APPELLANT: | Lake Macquarie City Council |
| RESPONDENT: | Leslie Jones |
| Appeal Panel | |
| Paul Sweeney | |
| MEMBER: | |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 20 February 2023 |
CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer alleges error by Medical Assessor (MA) in failing to make a deduction for a previous injury or pre-existing condition pursuant to section 323 or in failing to give adequate reasons for not making a deduction; Panel determines that MA turned his mind to the section 323 issue and concluded that there was insufficient evidence to make a deduction; Panel was of the same opinion; Pereira v Siemens Ltd considered; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 1 November 2022, Lake Macquarie City Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Rob Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 4 October 2022.
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 grounds of appeal on which the appeal is made.
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 the PIC Rules.
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
Leslie Jones (the respondent) was employed by the appellant council for 28 years. For much of that time he worked in erosion control performing physically demanding work involving the manipulation of heavy hoses, lifting and carrying heavy bags of seed, and reloading emoleum. During this time the respondent also performed the role of part-time relief grader and roller driver.
By his statement the respondent says that:
“These machines have a lot of jarring and jolting and there was one occasion where my back hit a bump and I flew out of the seat and landed heavily and had more pain in my back.”
Ultimately, on 22 December 2017 the respondent left his employment. He obtained alternative, less arduous work. He says that he has continued to have problems with his back which he attributes to the heavy work he performed for the appellant. He says that he also has experienced pain in his right leg.
On 30 May 2018, the respondent came under the care of Dr Stephen Kelly, a general practitioner. Dr Kelly noted that he had pain and paraesthesia in his L5/S1 dermatome. He referred him to Dr Richard Ferch, a neurosurgeon.
Dr Ferch referred the respondent for an MRI scan which confirmed an L4/5 disc prolapse compromising the L5 nerve root. On 25 June 2018, Dr Ferch performed a microdiscectomy which resulted in partial resolution of the respondent’s right lower limb pain.
On 21 April 2021, the respondent saw Dr Ghabrial, an orthopaedic surgeon, at the request of his solicitors. The doctor diagnosed a right L4/5 disc herniation with persisting radiculopathy as a result of an incident at work on 21 November 2017. He expressed the opinion that the respondent suffered 13% whole person impairment (WPI) of the lumbar spine “according to DRE Lumbar Category II”.
On 8 February 2022, the respondent saw Dr Miniter, an orthopaedic surgeon, at the request of the appellant’s solicitor. Dr Miniter had seen the respondent previously and provided earlier reports dated 29 August 2019 and 23 September 2021. By a report of 1 March 2022, Dr Miniter expressed the opinion that the respondent suffered from a degenerative condition of the lumbar spine which caused an L4/5 disc prolapse. He opined that the lumbar disease or disc was unrelated to the nature and conditions of the respondent’s employment. He also did not believe that it was “caused by the frank injury on 21 November 2017”. After a deduction for the pre-existing condition, he assessed WPI as 0%.
By these proceedings, the respondent claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). As the difference of opinion between Dr Ghabrial and Dr Miniter as to WPI gave rise to a medical dispute as that term is defined in s 319 of the 1998 Act, a delegate of the President referred the issue to Dr Kuru for assessment. It is from his certification of WPI that the appellant brings this appeal.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. Neither party sought a re-examination by a member of the panel. The issue in dispute between the parties concerned the application of s 323 of the 1998 Act to a previous injury or pre-existing condition. As the panel had before it, the histories recorded by the two qualified doctors, evidence from the respondent’s treating general practitioner and his treating neurosurgeon, and his evidentiary statement, it concluded that a further examination of the worker would not illuminate the issues raised on appeal.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA 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 MA that are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full, but have been considered by the appeal panel.
In summary, the appellant submits that the MA made a demonstrable error and/or applied incorrect criteria when failing to apply a deduction under s 323. It noted that the Court of Appeal in Vitaz v Westform (NSW) Pty Ltd[1] had stated that:
“If a pre-existing condition contributes to permanent impairment, a deduction is required even though the pre-existing condition may have been asymptomatic prior to the injury.”
[1] [2011] NSWCA 254.
The appellant submitted that the MA had failed to provide adequate reasons for his conclusion that there should be no deduction pursuant to s 323. In particular, he had not explained “how his assessment differs” from that of Dr Miniter who made a deduction of 100% under s 323.
The appellant referred to aspects of the evidence which might support a deduction under s 323. First, on 5 March 2014, the respondent worker had lodged an incident report which included reference to an injury to his low back while shovelling hot mix.
Secondly, his treating neurosurgeon, Dr Ferch took a history that the respondent had suffered “episodic low back pain in the past”. He had also expressed the opinion that the respondent “may have had a degree of degenerative change” before the incident of 21 November 2017.
Thirdly, the MA had recorded that:
“Mr Jones details a number of incidents at work associated with episodes of back pain.”
Fourthly, the appellant submits that the medical evidence revealed the presence of degenerative changes in the respondent’s low back prior to the injury in November 2017. The appellant continues:
“The evidence referred to above demonstrates that there was a degree of degenerative change in the lumbar spine prior to the injury on 21 November 2017. The appellant therefore submits a deduction under s 323 should have been made and the failure to do so constitutes a demonstrable error and/or application of incorrect criteria.
Further the MA’s failure to provide reasons for his conclusion a deduction was not required also constitutes a demonstrable error and/or an application of incorrect criteria.”
The respondent submitted that the incident report form of 5 March 2014 was of little weight as it was simply a record of “a potentially injurious event”. It continues as follows:
“There is no evidence to suggest that the worker required medical treatment or lost any time from work arising from the incident of 5 March 2014. There are no records of claim form, periods of incapacity or a need for further medical treatment within the evidence. Further, there are no imaging studies to support a finding of an injury of any significance (or any injury at all arising from the incident of 5 March 2014).”
The respondent submits that the opinion of Dr Miniter is of little probative value. While he did make a deduction of 100% pursuant to s 323, he appeared to do so on the basis that the respondent did not sustain an injury in the course of his employment. His opinion was, therefore, inconsistent with the terms of the Referral which assumed an injury in the course of the employment.
The respondent asserts that Dr Ferch “directly related” the L4/5 disc lesion “to an injury on 21 November 2017”. He does not find a degenerative condition but rather “speculates” that the respondent “may have a degree of degenerative change”.
While the MA recorded a history of episodic back pain prior to the injury of 21 November 2017 there was nothing within the clinical history to suggest a conclusion “that his back pain was of any significance or longer-term consequence”. Thus:
“It is entirely open to conclude that the worker has suffered the types of ‘aches and strains’ that would be expected in his role and unlikely to be of any lasting significance of the kind contemplated by s 323 of the WIM Act.”
Finally the respondent submitted that in the absence of “objective and identifiable evidence” any attempt to make a deduction would be based on the kind of speculation cautioned against by Schmidt J in Wenaline.[2]
[2] Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Wenaline).
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales.[3] The Judge considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The Appeal Panel has only considered those grounds specifically raised by the appellant in its application.
[3] [2013] SC 1792 (11 December 2013).
In Campbelltown City Council v Vegan,[4] 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.
[4] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[5] An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
[5] [2008] NSWCA 116.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia partners Pty Ltd v Kocak[6] that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Wingfoot it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[6] [2013] 252 CLR 80.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example, El Masri v Woolworths Ltd.[7]
[7] [2014] NSWSC 1344 (26 September 2014).
The MA took the following history of injury:
“Mr Jones undertook relatively physical work for Lake Macquarie Council and over the course of time had had episodic problems with pain in his back.
In 2017, he was tasked to operate a 15-20 tonne roller. Mr Jones indicated he was not happy with this re-tasking as there was no suspension in the roller and he was worried that it would aggravate his back. Indeed it did. Mr Jones indicated that the jarring worsened his pain in the bottom of his back so that he left his job and then secured alternative work as a truck driver.”
The MA also considered the notes of the respondent’s general practitioner Dr Kelly and the respondent’s statement of 16 November 2019 by which he stated that he had pain in his back and right leg after the incident on 21 November 2017. He summarised the injury and diagnosis as follows:
“Mr Jones sustained an L4/5 protrusion for which he has undergone surgical discectomy.”
On the basis of that diagnosis, he explained his calculations of WPI as follows:
“Mr Jones has undergone a discectomy. According to SIRA Guidelines, page 29, paragraph 4.37, decompressive surgery is assessed as DRE Category III (AMA-5, page 384, Table 15-3, 10% whole person impairment). According to SIRA Guidelines, page 28, I assess a further 1% for restriction of activities of daily living, giving 11% whole person impairment.”
The MA then turned to the competing views of Dr Ghabrial and Dr Miniter. He commented that by his report of 1 March 2022 Dr Miniter had not “assessed impairment of the lumbar spine”.
The panel notes that the injury found by the MA was a disc protrusion at L4/5 caused by an injury at work on 21 November 2017. The Guidelines at paragraph 4.37 dictate that the decompression surgery which was rendered necessary by the protrusion be assessed as 10% WPI. By reason of the terms of the Referral it was necessary for the MA to determine whether any proportion of this permanent impairment was due to a pre-existing condition or abnormality, and the extent of that proportion. The MA answered this question in the negative.
While the MA’s reasoning is terse, the actual path of his reasoning is transparent. Plainly, he concluded that there was insufficient evidence to find that a pre-existing condition or previous injury materially contributed to the occurrence of the L4/5 disc prolapse. In the opinion of the panel, in the context of the evidence in this case, the MA’s determination of the role of a pre-existing condition in the causation of that injury does not constitute a demonstrable error or the application of incorrect criteria.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principle enunciated a long time ago in Watts v Rake[8] and Purkess v Crittenden[9] had application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Legislation is also ancient lineage: see Sadler v Commissioner of Railways (NSW)[10] it is necessary for the appellant to point to appropriate evidence to support a deduction.
[8] (1960) 108 CLR 158.
[9] 114 CLR 164.
[10] (1969) 123 CLR 216.
In the opinion of the specialist medical practitioners of the panel there is a dearth of any objective data which would lead to the conclusion that the respondent worker suffered a pre-existing disease at L4/5 which contributed to the protrusion of the disc at that level and the compression of the L5 nerve root. As the respondent argues, there is an absence of evidence in the form of clinical notes, medical or radiological reports which would confirm the existence of significant degenerative disease at that level.
While the appellant relies on the opinion of Dr Miniter for an assertion that a deduction should be made, the panel concluded that little weight can be given to his evidence. As discussed above, he concluded that there was no work injury. He did not address the issue of the quantum of the deductible proportion on the accepted basis that there was a work injury.
Contrary to the opinions of the MA, Dr Ferch and Dr Ghabrial, Dr Miniter concluded that the respondent’s work played no role in the disc protrusion which occurred on 21 November 2017. Thus, his opinion is predicated on an assumption that is incorrect and entirely different to the conclusion reached by the MA.
While the appellant emphases the fact that the respondent gave a history of pre-existing back pain to the MA, it is quite common for labouring men to experience back pain from time to time. In the opinion of the panel, it would be wrong to infer from this evidence that the respondent had significant disc disease at the L4/5 disc space. Back pain may relate to transient soft tissue injuries caused by arduous work.
In the absence of contemporaneous evidence of pre-existing disease at L4/5, the conclusion favoured by the appellant involves a degree of speculation. In Pereira v Siemens Ltd[11] in summarizing the relevant case law Garling J said this at [82] to [90] (footnotes omitted):
[11] [2015] NSWSC 1133 (21 August 2015).
“The process encompassed by s 323 requires the application of each of the following steps before reaching the ultimate conclusion of the existence of a pre-existing injury which has an impact on the assessment of the injury the subject of the worker’s claim.
The first step requires a finding of fact that the worker has suffered an injury at work which has resulted in a degree of permanent impairment which has been assessed pursuant to s 322 of the 1998 Act: see Elcheikh at [125].
The second step which needs to be addressed is, assuming such an injury has been sustained and impairment has resulted, what is the extent of that impairment expressed as a percentage of the whole person: see Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh at [126].
The third matter to be addressed is whether the worker had any previous injury, or any pre-existing condition or abnormality. The previous injury does not have to be one in respect of which compensation is payable under the 1998 Act. If the phrase ‘pre-existing condition or abnormality’ is to be relied upon, then such condition or abnormality must be a diagnosable or established clinical entity: Fire & Rescue NSW v Clinen [2013] NSWSC 629.
A finding of the existence of a previous injury can be made without the presence of symptoms, but there must be evidence which demonstrates the existence of that pre-existing condition: Mathew Hall at [31]-[32].
The pre-existing injury or condition must, on the available evidence, have caused or contributed to the assessed whole person impairment: see Matthew Hall at [32]; Cole at [29]-[31]; Elcheikh at [88] and Ryder at [42].
It cannot be assumed that the mere existence of a pre-existing injury means that it has contributed to the current whole person impairment: Clinen at [32]; Cole at [30]; Elcheikh at [91]. What must occur is that there must be an enquiry into whether there are other causes of the whole person impairment which reflect a difference in the degree of impairment: Ryder at [45].
Next in dealing with the application of s 323, the extent of the contribution, if any, of the pre-existing condition to the current impairment must be assessed in order to fix the deductible proportion. If the extent of the deductible proportion will be difficult or costly to determine, an assumption is made that the deductible proportion will be fixed at 10%, unless that is at odds with the available evidence: s 323(2) of the 1998 Act.
Each of these steps, and considerations, is a necessary element of a determination that an assessed whole person impairment is to be reduced by a deductible proportion by virtue of the application of s 323 of the 1998 Act.”
In this case, the panel is not persuaded on the evidence that there are other causes of WPI which reflect a difference in the degree of impairment.
There is one other aspect of the matter which attracted the attention of the panel. The appellant argues that a deduction should be made to reflect back pain or symptoms which relate to the nature of his employment which was undoubtedly heavy, over a period of 28 years. The correspondence and some of the medical evidence, however, suggest that an injury caused by the nature of the respondent’s work was part of the medical dispute between the parties. As this was not specifically addressed by the parties, the panel does not intend to make a finding on the issue.
In response to the claim for permanent impairment compensation the appellant sought particulars of the respondent’s claim. By a letter of 2 June 2021, it requested particulars of incidents or events causative of impairment to the respondent’s lumbar spine. In response the respondent’s solicitors, in a letter dated 25 June 2021, stated:
“We assert that our client’s impairment to his lumbar s pine, right shoulder and right knee have arisen as a result of several incidents in his employment with Lake Macquarie City Council. We assert that our client’s nature and conditions of employment has led to his current condition.” (panel’s italics)
Presumably in response to this assertion, Dr Miniter was briefed to express an opinion on whether:
“the worker suffered a lumbar spine, right shoulder and/or right knee injury due to the nature and conditions of employment? In other words, do you accept the worker’s employment was the main contributing factor to either the contraction of the disease or the aggravation, acceleration, exacerbation or deterioration of the disease?”
Thus, the parties appear to have turned their mind to the possibility that the nature of the respondent’s work over a long period of time may have contributed to the impairment in his low back.
In Skates v Hills Industries Limited[12] the Court of Appeal determined that the medical dispute between the parties must be determined on the basis of the letter of claim, the medical reports on either side of the record, and the pleadings. The Referral is but one, albeit a very important, document in this process. Whether the reasoning in Skates has application to this claim is beyond the scope of the issues raised on appeal.
[12] [2020] NSWSC 837.
The panel has, however determined that the appellant has not proven error or the application of incorrect criteria. For these reasons, the Appeal Panel has determined that the MAC issued on 4 October 2022 should be confirmed.
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