Lee v Bunnings Group Limited
[2021] NSWPICMP 203
•29 October 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lee v Bunnings Group Limited [2021] NSWPICMP 203 |
| APPELLANT: | Sharan Lee |
| RESPONDENT: | Bunnings Group Limited |
| APPEAL PANEL: | Member Catherine McDonald Dr Mark Burns A/Prof Christopher Grainge |
| DATE OF DECISION: | 29 October 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker suffered injury when she opened a gardening product and began to cough; previous award of compensation; choice of Medical Assessor (MA); diagnosis by MA different to injury as pleaded; Bindah v Carter Holt Harvey Woodproducts discussed; assessment by analogy; Held – Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 April 2021 Sharan Lee lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Gregory Kaufman, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 30 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 was satisfied that, on the face of the application, at least one ground of appeal has been made out, being that in s 323(3)(d). 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 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).
Ms Lee commenced proceedings on the Workers Compensation Commission (WCC) and medical dispute was referred to an Approved Medical Specialist. Between the date of the referral and the date of the MAC, the Personal Injury Commission commenced to operate on 1 March 2021. In this decision we have used the nomenclature which was appropriate at the time of each relevant event.
RELEVANT FACTUAL BACKGROUND
Ms Lee worked in the garden section of the Bunnings store in South Nowra. On 2 June 2010 she was moving bags of Weed and Feed when she noticed that one of the bags had split and gave off a strong odour. She quickly began to cough and noticed a constricted feeling in her throat. She stopped work and her breathing became more difficult and her cough more pronounced. She was taken to the Emergency Department at Shoalhaven Hospital and adrenaline was administered in the ambulance on the way there and at the hospital. She went home after four to five hours and returned to work the next day when she was exposed to another substance causing her to develop throat irritation and a severe cough and she noticed that her tongue began to swell.
Ms Lee ceased work at Bunnings and has not returned to work. Before working at Bunnings, Ms Lee had served as a police officer and had stopped work on medical grounds, suffering post-traumatic stress disorder.
Ms Lee has been under the care of general practitioners since the injury. She said in her statement dated 12 June 2018 that she has had many reactions to numerous chemicals so that she now mostly stays home in a controlled environment. She said that she has had a number of “significant episodes of anaphylaxis” and carries an Epi-pen though has not had to use it.
On 28 November 2011, Dr C Clarke, an Approved Medical Specialist (AMS) in the WCC issued a MAC in which he assessed 10% whole person impairment. Dr Clarke was asked to assess Ms Lee in respect of her respiratory system. Ms Lee was compensated in accordance with that MAC. She said in her statement that her condition has deteriorated since then.
A telephone conference was held on 7 September 2020 and the Arbitrator referred the matter to Dr Burns, a member of this panel, for assessment. There is no explanation in the file as to why that occurred because an arbitrator (or member) has no role in the selection of the assessor. Dr Burns informed the WCC that he did not consider he had the expertise to assess Ms Lee for Multiple Chemical Sensitivity Syndrome (MCS), the condition relied on in her Application to Resolve a Dispute (ARD). The matter was then referred to another AMS, Dr R Haber, who also informed the Commission that he did not consider that he was the right specialist to perform the assessment.
The matter was the referred to Dr Kaufman as an Approved Medical Specialist. Like Dr Clarke, he was asked to assess Ms Lee’s respiratory system. On receipt of the referral, Ms Lee’s lawyer wrote to the WCC and noted that Dr Kaufman had provided a medico-legal report in her first permanent impairment claim. The relevant Dispute Services Coordinator wrote to the parties, noting a conflict of interest in respect of Dr Kaufman. She said that there were no other AMSs in the relevant specialty and sought the parties views by Friday 12 February 2021.
On 8 February 2021, Bunnings’ lawyer wrote to the WCC and said that Bunnings did not oppose the referral to Dr Kaufman (if he agreed to undertake the examination) because he was the only available specialist. It also suggested that the Commission could locate another specialist and “engage them as an AMS”.
Unfortunately, the WCC did not wait for a response from Ms Lee before deciding to proceed with the appointment with Dr Kaufman.
Dr Kaufman (now described as a Medical Assessor) prepared a MAC dated 30 March 2021. He determined that Ms Lee suffered inducible laryngeal obstruction and assessed 10% WPI by analogy to asthma. He considered that the condition was contributed to by psychological factors and that the extent would be difficult or costly to determine. The Medical Assessor deducted one-tenth in accordance with s 323 of the 1998 Act, resulting in WPI of 9%.
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 there is sufficient information in the file to determine the appeal.
We also agreed that there was no impediment to Dr Burns being a member of the Panel, even though he had informed the Commission that he was unable to perform the primary assessment. The role of a Panel member in considering the appeal and whether the grounds have been made out is different to that of the Medical Assessor. Associate Professor Grainge (recently appointed as a Medical Assessor) is a respiratory physician.
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.
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.
Mr Dodd of counsel prepared submissions for Ms Lee. He pointed out that a number of specialists had diagnosed hypersensitivity to a range of chemicals. He noted that an earlier claim for permanent impairment had been made, as a result of which Ms Lee had been compensated for 10% WPI in 2011, Dr Clarke having diagnosed reactive airways dysfunction syndrome. Mr Dodd summarised the medico-legal reports.
Mr Dodd said that Ms Lee’s claim was for 25% WPI less the 10% already paid. Bunnings solicitors arranged a further appointment with Professor I Young but, before the appointment took place, made an offer of no additional compensation. He noted that the injury claimed in the ARD was “injury to airways resulting in multiple chemical sensitivity” and that the Reply did not dispute the nature of the injury, which was consistent with the diagnosis by Prof Young.
Mr Dodd set out the email correspondence summarised at 11 to 13 above and said that the decision by the Registrar was made before hearing from Ms Lee and before the deadline for responses. He said that the documents were necessary because Ms Lee reserved her rights to seek judicial review of the Registrar’s actions but noted that all avenues of appeal should be exhausted before making that application. He said that the referral should have been expressed as “injury to the airways resulting in multiple chemical sensitivity”. He noted that the Medical Assessor said that all parties had accepted him preparing the report and that the MAC should be revoked on that ground alone.
With respect to “demonstrable error and incorrect criteria”, Mr Dodd said that the task of “determining injury (including its nature) was for an Arbitrator, with the role of the AMS limited to assessing the WPI that resulted from the injury.” He said that the question of whether the pathology found to exist has been caused by the injurious event was a liability issue over which the Commission has exclusive jurisdiction. He referred to the Medical Appeal Panel decision in McKenzie v Chalkers Crossing Pty Limited[1] (McKenzie) in which the Panel said that where the parties did not contest the diagnosis of occupational asthma, the AMS was required to assume that the diagnosis was occupational asthma “whether he agreed with this diagnosis or not”. Because the AMS had not done so, there was demonstrable error.
[1] M2-745/08 25 November 2008, [2008] NSWWCCMA 343.
Mr Dodd submitted that the diagnosis by the Medical Assessor of “inducible laryngeal obstruction or vocal cord dysfunction” rather than “injury to airways resulting in multiple chemical sensitivity” was a demonstrable error. He submitted that a re-examination was required because the examination by the Medical Assessor was of no assistance, having been carried out by video when Ms Lee was sitting in her car. Mr Dodd said that the assessment made “should be more than” 20% WPI assessed by Prof Young and perhaps as high as 25% WPI assessed by Dr Slezak.
In reply, and in submissions prepared by its solicitor, Mr Elder, Bunnings noted the decisions of Roche DP in Jaffarie v Quality Castings Pty Ltd[2] and Kempsey Shire Council v Kirkman[3] and of the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[4] (Bindah). He said that the Commission had not made a determination about the nature of
Ms Lee’s injury so that the Medical Assessor did not commit an error and his findings were consistent with the Certificate of Determination which referred the matter to him. The fact that the Medical Assessor’s diagnosis differed from other doctors was of no moment because the Medical Assessor did not need to do more than take those opinions into account, citing The UGL Rail Services Pty Ltd v Attard.[5][2] [2014] NSWWCCPD 79.
[3] [2010] NSWWCCPD 104.
[4] [2014] NSWCA 264.
[5] [2016] NSWSC 911.
Mr Elder submitted that the statement by the Medical Assessor that all parties had accepted him preparing the report was immaterial to his assessment of WPI. Bunnings said that if its submissions as to the futility of the appeal were not accepted, then a re-examination should be undertaken.
Bunnings did not specifically refer to the additional material on which Ms Lee sought to rely. It is not fresh evidence within the meaning of s 328(3) of the 1998 Act. It is relevant background material and will be admitted for the purpose of this appeal
FINDINGS AND REASONS
While this Panel has no role in resolving questions about errors made by the Registrar’s delegate, it is appropriate for us to observe that we agree that the delegate denied Ms Lee procedural fairness. She did so by appointing the Medical Assessor before the deadline she had imposed for submissions had expired and in failing to take into account any submissions made by Ms Lee.
However, there is nothing in the material attached to Mr Dodd’s submissions to show that Ms Lee, through her solicitors, took the opportunity to oppose the referral to the Medical Assessor. It was open to her to do so. Clauses 2.16 to 2.22 of the Workers Compensation Medical Dispute Assessment Guidelines deal with conflicts of interest and 2.20 provides:
“A party may apply to the Registrar to have the matter reallocated on the grounds that the AMS, to whom the matter has been allocated, has a conflict of interest. To do that, the party must apply:
2.20.1 within seven days of receiving notification of the name and contact details of the AMS
2.20.2 in writing, detailing the reasons in support of the reallocation.”Having made those comments, we will deal with the appeal. 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.[6]
[6] Section 328(2) of the 1998 Act, New South Wales Police Force v Registrar [2013] NSWSC 1792.
In this case, those grounds are quite narrow, perhaps because of Ms Lee’s foreshadowed application for judicial review of the decision made by the Registrar’s delegate. Ms Lee disputes the process by which the medical dispute was referred to the Medical Assessor and said that his comment that all parties had agreed to the referral was a sufficient demonstrable error to overturn the certificate. The only other alleged error on which she relied was that the Medical Assessor came to his own diagnosis which was inconsistent with the referral. Notably, no ground of appeal was raised with respect to the deduction under s 323 of the 1998 Act made by the Medical Assessor.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
The MAC
The referral to the Medical Assessor reflected an agreement by the parties at a telephone conference. An arbitrator of the WCC declined to assess WPI and the Medical Assessor was asked to assess WPI by reference to Ms Lee’s respiratory system. The agreement of the parties and the consequent referral did not provide any further guidance to the Medical Assessor and there was no determination by the WCC as to the nature of the injury to
Ms Lee’s respiratory system.The assessment was conducted by video conference and Ms Lee was sitting in her car. The reason for that is not explained.
The Medical Assessor said:
“I had examined Ms Lee on the 9th March 2011 for the purpose of a medical report. All parties have accepted my preparing this present report. I confirmed with Ms Lee that the details of history up until the time of the report of the 9th March 2011 were as I had recorded. I then took a detailed account of events up until the present time.”
The Medical Assessor set out the history of the injury and described Ms Lee’s symptoms:
“Following that incident, Ms Lee developed a consistent pattern of symptoms after exposure to a large range of substances, all seemingly having in common, the ability to release a volatile chemical substance. The nature of the triggering chemical would vary as determined by the large variety of substances involved. The symptoms include tingling of the tongue and a sense of tongue swelling but without necessarily there being any visible swelling (angioedema of the tongue). There would be an inhalational wheeze (rather than expiratory wheeze). She likens this to breathing in through a straw. She develops a dry cough which may persist for 20 minutes, for up to two hours. She treats this with multiple puffs of Salbutamol (Ventolin). If cough is of greater severity, she takes an antihistamine, usually Loratadine. The inspiratory breathlessness may last from 20 minutes to two hours. The Ventolin only provides a small level of relief. She then develops an altered voice, raspy in quality which varies in severity and may persist for several hours up to a week. This is accompanied by a sore throat over the same time interval
About half an hour after the onset of cough, she develops a headache described as of pulsating quality. This persists from between 1-4 days and diminishes in severity over this time. She treats this with Paracetamol. She feels this headache may be related to the coughing. She finds the coughing draining. She feels fatigued, may sleep for half an hour to an hour. There has never been a loss of consciousness after the original episode. She develops redness of the face and upper chest. There is no itching nor urticaria. This lasts ten minutes to two hours.”
The Medical Assessor noted that Ms Lee does not suffer any symptoms in the absence of exposure to triggering agents.
The Medical Assessor noted the results of airways function tests previously conducted:
“Measurements of airway function were carried out by various specialists. I performed spirometry on the 9th March 2011. FEV1 was 3.4, FVC 3.9L with no change after bronchodilator. Dr Clark performed spirometry on the 5th December 2011. FEV1 was 3.25L and FVC 3.89L with no significant change after bronchodilator. Dr Young performed spirometry in May 2014. FEV1 was 3.18L and FVC 3.67L with no change after bronchodilator. He also performed spirometry on the 23rd August 2018. FEV1 was 3.03L and FVC 3.94L with no change after bronchodilator. On each occasion, lung function was normal and there was no change after bronchodilator, indicating that there was no asthma at those times.”
The Medical Assessor set out his diagnosis:
“Ms Lee does not have asthma and nor are the features she describes that of multiple chemical sensitivity syndrome. There is a heightened sensitivity or exaggerated response to irritants at the level of the larynx. This condition has a name: inducible laryngeal obstruction or vocal cord dysfunction. It occurs more frequently in people with anxiety disorders and thus, may be psychological in nature. Although an alteration in response to irritants may have a physiological basis.”
He said:
“This is a very difficult assessment to make and I am calling upon my qualifications and current practice experience as a Respiratory Physician and an Allergist, and a General Physician. Ms Lee describes ongoing symptoms that all primarily relate to reactivity of the upper airways (the laryngeal structure) rather than the lungs. This is an area of anatomy that is addressed by respiratory physicians and allergists as well as Ear, Nose and Throat doctors. The nature and quality of symptoms described by Ms Lee are that there is a heightened response to a wide variety of inhaled substances that trigger a cough and then very likely cause narrowing of the larynx resulting in reduction in inspiratory airflow, rather than the expiratory airflow reduction that is generally the hallmark of asthma. This condition which is known as inducible laryngeal obstruction and also as vocal cord dysfunction syndrome is recognised to be in many sufferers set off by irritants and also emotional stress. It is more frequently identified in those people who have an anxiety disorder.”
The Medical Assessor noted Ms Lee’s history of PTSD. He said:
“Throughout the numerous notes over the years by various general practitioners, there is not one reference to an episode of asthma. This is consistent with the diagnosis not being asthma. Lung function measurements performed by various respiratory specialists have consistently shown normal airway function, i.e. an absence of asthma on those occasions. In summary, asthma is extremely unlikely.
The pattern of symptoms is not what I see in those patients who would be classified as having multiple chemical sensitivity syndrome. Although a large variety of chemicals are considered to trigger the upper respiratory tract irritability, they do not here trigger the pattern of symptoms usually associated with the label, multiple chemical sensitivity syndrome. This itself is a controversial condition and considered by some to have a psychological contribution.
On the 9th April 2012, the general practitioner notes that Ms Lee was smoking 20 cigarettes per day. There were treatments implemented to cease smoking. This was ultimately achieved. Nonetheless, the fact that the many chemicals that are found in tobacco smoke did not induce the symptoms from which Ms Lee suffers does add to the impression that there is a psychological factor underlying the reactivity to chemicals.”
When making his assessment, the Medical Assessor noted that the condition of inducible laryngeal obstruction is not addressed in the Guidelines. He noted paragraph 1.23 and said:
“I interpret this to mean that I can compare the upper airway condition to asthma which is a lower airway condition where in both there is obstruction to airflow. The analogous form of asthma is where there is intermittent impairment of airflow. This gives rise to normal measurements of airway function, i.e. FEV1 and FVC and their ratio but with the need for intermittent medication to relieve symptoms of asthma. In the current situation, the airflow limitation is in the upper airways with normal lung function at other times. In referring to Table 5-9 on page 104 of AMAS, a score of 1 is given for asthma severity where measurements of airway function are normal and minimum medication includes occasional but not daily bronchodilator. This is the pattern that is applicable for Ms Lee. In Table 5-10 which provides for impairment rating for asthma in AMAS, Page 104 an asthma score of 1-5 gives an impairment of the whole person of 10-25%. As the score of 1 is at the lower end of that range, this would be commensurate to an impairment of 10%.
It is impossible to be certain just how much of a contribution psychological factors are having in bringing about the symptoms that Ms Lee describes and how much might be due to a heightened responsiveness to irritant chemicals by nerve fibres in the laryngeal region, As the extent of the psychological contribution is difficult to determine, I assessed the deductible portion as 1/10 of the 10% whole body impairment. This gives an impairment of 9%.”
When commenting on other medical opinions, the Medical Assessor said:
“In my own report from the 9th March 2011, I gave reasons why I did not believe the condition was multiple chemical sensitivity syndrome. I had reservations about a diagnosis of reactive airways dysfunction syndrome (a form of occupational asthma) but seemed the closest fit. Dr Clark agreed with this in his report. Since that time, there has never been documentation of airflow limitation. The notes from multiple general practitioners not once refer to an episode of asthma. Other respiratory physician reports also discount reactive airways dysfunction syndrome persisting to the present (reports of Professor Young).
Dr Garcia [sic], an immunologist considered the possibility of multiple chemical sensitivity syndrome but was also of the view that psychological factors might be underlying the reported symptoms.”
Other medical evidence
Dr R Garsia, immunologist, prepared a report for Bunnings’ insurer on 6 September 2010:
“It is difficult to be certain whether the episode of collapse that occurred on 2 June after exposure to airborne dust and volatile chemicals emanating from ‘moist weed and feed’, was allergy per se or extreme irritant effects on the airways but I favour the view that it represented allergic hypersensitivity, most probably to sulphur dioxide or sulphites. It is quite possible that she experienced both a chemical
‘burn’ to the airways from particulates as well as the irritant and allergy provoking effects of sulphur dioxide gas. The subsequent tongue tingling she has experienced with white wine raises the possibility of ongoing sulphite allergy. Unfortunately there are no skin tests or blood tests which will detect that entity and the only definitive way of establishing whether there is allergic hypersensitivity to sulphites and sulphur containing volatile agents is challenge with graded concentrations of exposure. My own view is that would not be safe in her case in view of what appears to have been quite severe hypersensitivity which was not easily corrected with adrenaline.The subsequent course of her illness has been unusual. She appears to have developed hypersensitivity of some form to a very broad range of volatile agents. The manifestation of that Is to provoke coughing and raspiness of her voice and irritability in her throat. It is much less clear whether those symptoms are organic or represent dysaesthetic, dysphoric sensations triggered by cortical processes. There remains however a very high likelihood that re-exposure to sulphur dioxide producing or containing substances and possibly ammonia containing substances may well provoke serious anaphylaxis. My assessment is that the advice given by Prof Ron Walls was fully appropriate to her circumstances. and I concur with the general advice he gave about avoiding specifically ''weed and feed", other fertilisers and situations where containers of such products would need to be handled. I believe that she has probably sustained an irritant injury to the airways and that may well take many months to settle down.”
The Medical Assessor saw Ms Lee at the request of her solicitors on 9 March 2011. He recorded that Ms Lee had developed an intolerance to a large range of chemical substances with a recurrent pattern of symptoms. He noted that her physical examination was normal. He considered that Ms Lee suffered a variant of reactive airways dysfunction (RAD), a form of asthma, caused by a single, heavy inhalational exposure to a respiratory irritant. He said there was no more suitable category in AMA 5. He said:
“In evaluating Whole Person Impairment, I have chosen to consider Ms Lee as having a variant of RADS, a form of asthma. As there is no more suitable category available in AMA 5. A test for bronchial hyper responsiveness has not been performed.
According to WorkCover guides for the Evaluation of Permanent Impairment 3rd Edition, Chapter 8, Page 45, Section 8.6, it is specifically stared that ‘bronchial challenge testing should not be performed as part of the Impairment Assessment’ Ms Lee's post bronchodilator FEVl was normal and there was no reversibility. Her minimal medication use is occasional, when she has developed symptoms. According to Table 5-9 on Page 104 of AMA 5, this gives her an impairment classification for asthma severity of l, according to Table 5-10 on Page 104, a total asthma score of 1-5 attracts an Impairment of the Whole Person of 10%-25%. On taking into account all the clinical and personal factors, I would assign 10% Impairment of the Whole Person.”Dr C Clarke prepared a MAC dated 5 December 2011. The MAC records that the referral was in respect of the respiratory system. With respect to diagnosis he said:
“I feel that the acute respiratory· event was preceded by a smaller exposure to a similar substance. I note the opinion of Dr Greg Kaufman and he suggested she might have condition called reactive airways dysfunction syndrome or RADS. I agree with this assessment and feel it is the best diagnosis that fits the original presenting symptom and the subsequent events. Unfortunately, she has not had the tests to see if she does have increased bronchial hyperreactivity.”
Under the circumstances, I agree with that diagnosis.
Following that MAC, a WCC arbitrator determined that Ms Lee should receive compensation under the former s 67 of the Workers Compensation Act 1987 (the 1987 Act) representing 32% of a most extreme case.
Dr P Slezak, physician, assessed Ms Lee at the request of her solicitors on 28 October 2019. He said:
“Initially, Ms Lee's symptoms may have suggested reactive airways dysfunction syndrome following the initial chemical exposure in June 2010. However, her ongoing symptomatology with sensitivity to various aerosols, e.g. perfume, aftershave products, hair products, chemicals used to care for her horses, ?sulfite sensitivity, suggests that in fact Ms Lee has developed multiple chemical sensitivity syndrome, very likely induced by the chemical exposure during the course of work duties in June 2010.”
Dr Slezak assessed WPI in the following way:
“The AMA Guides to Permanent Impairment do not allow one to calculate whole person impairment in relation to the entity of multiple chemical sensitivity syndrome.
The previous 10% whole person impairment may have reflected a diagnosis of reactive airway dysfunction syndrome. The fact that Ms Lee's present condition significantly interferes with her day-to-day life and has precluded a return to any form of gainful employment, a 25% whole person impairment would seem a very reasonable estimate.”
Prof I Young has assessed Ms Lee on a number of occasions. In his report dated 20 May 2014, he considered that the diagnostic label which best fitted her symptoms was multiple chemical sensitivity syndrome. Prof Young said it was a “controversial entity because no clear immunological mechanism has been identified that can explain reactions to such a wide variety of chemical substances.” He was satisfied that Ms Lee did not have ongoing asthma but said she may have developed RADS at the time of her exposure. He considered that she should consult an immunologist and a psychiatrist.
Prof Young prepared a further report dated 23 October 2018 in which he noted the MAC prepared by Dr Clarke. He said:
“I gained the impression that, if I had seen Ms Lee for the first time on 23 October 2018, my report would have been identical with the one I provided dated 20 May 2014. Although she had symptoms consistent with reactive airways dysfunction syndrome and a possible asthmatic reaction immediately following the exposure on 02 June 2010, her persistent symptoms can be classified as multiple chemical sensitivity (MCS) syndrome, without any evidence for a persistence of asthma or any other lower airway or lung condition. My opinion, fully expressed on page 6 of my earlier report, still stands.”
Prof Young was asked to assess WPI and said:
“It is my opinion that Ms Lee's permanent Whole Person Impairment cannot be calculated from a respiratory cause, according to the rules set out in the New South Wales Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (01 April 2016), Chapter 8, that refers to Chapter 5, Pages 87 to 115 of AMA5. Assessment of permanent impairment (Item 5.10, Page 107) of AMAS relies heavily on abnormalities of lung function testing and Ms Lee's lung function has been normal on a number of occasions when measured by respiratory physicians.
There is provision, noted on Page 107 of AMA5, to allocate a Respiratory Whole Person Impairment in the presence of normal lung function by reference to loss of activities of daily living and, at first glance, this would certainly apply to Ms Lee. However, the final sentence states "A detailed description with supporting, objective documentation of the type of pulmonary impairment and its impact on the ability to perform activities of daily living is required".
For this reason, I believe it is not possible to calculate a Respiratory Whole Person Impairment for Ms Lee. The previous calculations of 10% WPI by Drs Kaufman and Clarke were appropriate at the time when Ms Lee had lingering symptoms of possible reactive airways dysfunction syndrome. However, it is my opinion that all her symptoms are now attributable to multiple chemical sensitivity.
It is also apparent to me that her degree of Whole Person Impairment well exceeds 10% at this time and should be formally assessed by an immunologist as I suggested in my original report.”
Prof Young prepared an impairment assessment dated 9 January 2019. Bunnings’ insurer had drawn his attention to paragraph 1.23 of the Guidelines and requested an assessment by analogy. He said:
“I understand this provision is to allow a full impairment assessment due to respiratory disorders such as bronchiectasis that do not impair respiratory function but cause considerable impairment due to cough and sputum production. However, I will provide an approximate impairment assessment consistent with my ‘non-expert’ capacity.
It remains my opinion that Ms Lee should be further assessed by an immunologist and a psychiatrist, particularly given her past psychiatric history. However, I understand the difficulties you have encountered concerning these assessments.
I confirm my opinion that Ms Lee is currently impaired for activities of daily living and for any occupation, and that this impairment is in excess of 20% whole person impairment. It is also my opinion that this impairment appears to be permanent although this would be contingent on further assessment and possible treatment by an immunologist and/or psychiatrist.”
Legal issues
The matter was listed for a telephone conference before an arbitrator but his Certificate of Determination indicates that the referral was made by consent. That means that the Arbitrator did not make any findings about the nature of the injury. The referral was made in respect of Ms Lee’s respiratory system.
Mr Dodd referred to a Medical Appeal Panel decision in McKenzie. The decision of another Appeal Panel, made in 2008, is not binding on this Panel. The statement in it that “the AMS’s function is not to determine what the injury is or the mechanism or mechanisms by how it arose”. The statement is not consistent with the current Guidelines or more recent authority.
In Bindah, the Court of Appeal considered the legislation before the amendment to repeal s 65(3) of the 1987 Act in 2018. Emmett AJA said[7]:
“Generally, the scheme for the settlement of compensation disputes established by the Management Act, read in conjunction with the Compensation Act, is to have factual and legal issues resolved by an arbitrator, subject to an appeal to a President or Deputy President of the Commission, and to have certain medical issues decided by an approved medical specialist, subject to an appeal to an Appeal Panel. That scheme is designed to ensure that the degree of permanent impairment that results from injury, and any contribution to the worker's total impairment that is due to an earlier injury or pre-existing condition, are assessed in accordance with Pt 7 of Ch 7 of the Management Act, and not otherwise. If there is a medical dispute within the meaning of that term in s 319 of the Management Act, an arbitrator would have no jurisdiction to decide it. However, an arbitrator may refer such a medical dispute for assessment by an approved medical specialist under s 321. Section 321 confers a power that, in a proper case, an arbitrator is bound to exercise in aid of the private rights of the parties. Thus, because an arbitrator has no jurisdiction to decide a medical dispute, an arbitrator has no jurisdiction to make findings that are binding on an approved medical specialist or on an Appeal Panel. A finding made by a person without jurisdiction cannot bind a person or persons who have jurisdiction (see Haroun v Rail Corporation New South Wales [2008] NSWCA 192 at [16] and [19] - [21]).
However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
[7] At [109]-[110].
So far as we can see from the file, no finding had previously been made about the nature of the injury. The ARD referred to the injury as multiple chemical sensitivity. Bunnings apparently did not contest that diagnosis because its own medical reports used that terminology. The parties agreed, however, to a referral in respect of Ms Lee’s respiratory system.
Application of the Guidelines
The Guidelines - made under s 376 of the 1998 Act – are subordinate legislation and the Medical Assessor was required to apply them to the extent that they are not inconsistent with the Act[8]. There is no suggestion that the relevant parts of the Guidelines are inconsistent with the legislation.
[8] Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523.
The Guidelines provide in paragraph 1.1:
“…The Guidelines are to be used within the NSW workers compensation system to evaluate permanent impairment arising from work-related injuries and diseases.
The Guidelines adopt the 5th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA5) in most cases. Where there is any deviation, the difference is defined in the Guidelines and the procedures detailed in each section are to prevail.
The principles of assessment include that the Medical Assessor is to assess a worker as they present on the day that she presents for assessment. Paragraph 1.6 b provides:
“Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.”
The Medical Assessor was required by the Guidelines to make his own diagnosis before making his assessment.
The Guidelines provide that AMA 5 is to be used for most body systems. Paragraph 1.23 provides:
“AMA5 (p 11) states: ‘Given the range, evolution and discovery of new medical conditions, these Guidelines cannot provide an impairment rating for all impairments... In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living.’ The assessor must stay within the body part/region when using analogy.
‘The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.’”
With respect to the Respiratory system, chapter 8 of the Guidelines provides that AMA 5 Chapter 5 applies subject to the modifications set out in the chapter. The chapter contains some modifications of AMA 5. None of those is directly relevant to the assessment of Ms Lee’s impairment.
There is no chapter in the Guidelines or in AMA 5 dealing with Multiple Chemical Sensitivity. The Medical Assessor was therefore required to rely on paragraph 1.23 of the Guidelines in providing an assessment of permanent impairment and to find an analogy in the same body region. He did so and he explained his reasoning.
Notably, the other independent medical examiners who made higher assessments, did so without reference to the Guidelines or AMA 5. Dr Slezak, qualified for Ms Lee, agreed that AMA 5 does not allow for the calculation of WPI for multiple chemical sensitivity. His assessment of 25% WPI was based on the fact that the condition interferes with Ms Lee’s day to day life and has precluded a return to employment. It was an estimate.
Prof Young made a similar estimate without forming a concluded view. He also said that an assessment of the impairment as permanent is contingent on further assessment and possible treatment by an immunologist and/or psychiatrist. While this statement does not form part of our assessment, the Panel agrees that treatment in a multidisciplinary clinic may provide significant relief of Ms Lee’s symptoms.
Though they did not say so, it may be that Dr Slezak and Prof Young were influenced by the following passage on page 107 of AMA 5:
“The classification system in Table 5-12 considers only pulmonary function measurements for an impairment rating. It is recognised that pulmonary impairment can occur that does not significantly impact pulmonary function and exercise test results but that does not impact the ability to perform activities of daily living, such as with bronchiectasis.
In these limited cases, the physician may assign an impairment rating based on the extent and severity of pulmonary dysfunction and the inability to perform activities of daily living (see Table 1-2). Measured losses of pulmonary function, and corresponding impairment classes, result in a loss in the ability to perform some activities of daily living. The physician can use these associations as a reference. A detailed description with supporting, objective documentation of the type of pulmonary impairment and its impact on the ability to perform activities of daily living is required.”
Table 1.2 of AMA 5 deals with the activities of daily living which are commonly measured. Sensory function, including smelling, is included though page 4 of AMA 5 specifically includes work from those activities.
Those parts of AMA 5 do not provide a justification for Dr Slezak’s assessment.
The Medical Assessor’s method of assessment was appropriate. He determined that the analogous condition was asthma with intermittent impairment of airflow and assessed Ms Lee with a score of 1 which under Table 5-10 gives an impairment of 10-25% WPI for an asthma score of 1 to 5. We agree that a score of 1 should result in assessment at the lower end of the range. The assessment of 10% WPI was an appropriate exercise of the Medical Assessor’s clinical judgement.
For these reasons, the Appeal Panel has determined that the MAC issued on 30 March 2021 should be confirmed.
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