Lipman Pty Ltd v Prater
[2024] NSWPICMP 841
•9 December 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Lipman Pty Ltd v Prater [2024] NSWPICMP 841 |
| APPELLANT: | Lipman Pty Limited |
| RESPONDENT: | Kerry Prater |
| APPEAL PANEL | |
| MEMBER: | Richard Perrignon |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | Doron Sher |
| DATE OF DECISION: | 9 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from assessment of whole person impairment with respect to both shoulders; where injury resulted from the nature and conditions of employment over time; whether Medical Assessor erred in omitting to make a deduction for pre-existing arthritis of the acromioclavicular joint of each shoulder; whether there was evidence of any such condition prior to commencement of the nature and conditions of employment; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
Lipman Pty Limited (the appellant employer) appeals from the Medical Assessment Certificate of Medical Assessor Kuru dated 21 August 2024. The Medical Assessor assessed a 21% whole person impairment (11% right shoulder, 11% left shoulder) as a result of injury on 11 November 2020.
The appellant does not challenge the assessment of 21%. It says that the Medical Assessor erred by omitting:
(a) to make a deduction for osteoarthritis (OA) of the acromioclavicular (AC) joint in each shoulder;
(b) to give reasons for his finding that there was no deductible proportion;
(c) to consider the evidence of pre-existing degenerative change in MRI reports of 1 February 2021 (both shoulders), 17 January 2022 (left shoulder) and 28 March 2023 (both shoulders), and
(d) to consider the reports of independent orthopaedic surgeon Dr Bosanquet on which the employer relied, who made a deduction of one-third to account for pre-existing arthritis.
It says that the Medical Assessment Certificate should be set aside and replaced with an assessment of 21%, from which one third should be deducted to account for pre-existing degenerative disease in both shoulders.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
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.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits as follows.
(a) the Medical Assessor noted a report of an MRI of both shoulders dated 1 February 2021, which reported OA of the AC joints bilaterally.
(b) However, when referring to reports of a subsequent left shoulder MRI dated 17 January 2022, he omitted to note that it described moderate AC joint arthrosis.
(c) When referring to a report of bilateral shoulder MRI’s dated 28 March 2023, he omitted to record that it reported moderate AC joint arthrosis on the right and moderately severe AC joint arthrosis on the left.
(d) In his operation report of 10 August 2023, treating orthopaedic surgeon Dr Bokor reported a frayed degenerate bicep on the right.
(e) The Medical Assessor erred by failing to make a deduction for OA of the AC joints evidenced by the MRI reports above, regardless of whether the OA was asymptomatic prior to commencing work in July 2018.
(f) A one-tenth deduction would be at odds with the available evidence, and a one-third deduction is appropriate, as made by Dr Bosanquet.
(g) The Medical Assessor erred by failing to give reasons for finding that there was no deductible proportion, given the contest between him and Dr Bosanquet on the issue of the deduction.
(h) The Medical Assessor erred by failing to consider the reports of Dr Bosanquet, and to explain why he reached a contrary conclusion.
In reply, Kerry Prater (the respondent) submits as follows.
(a) the Medical Assessor was aware that the worker suffered underlying arthritic changes in both shoulders, because he referred to it in his note of an imaging report dated 14 July 2020.
(b) As he was aware of it, it was unnecessary for him to quote in full what the other imaging reports showed at [6] of the Medical Assessment Certificate.
(c) A deduction may only be made if the pre-existing condition currently contributes to the impairment assessed.
(d) The omission to consider the reports of Dr Bosanquet does not disclose error, because:
“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 to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise”: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [47].
(e) The Medical Assessor was required to make up his own mind and reach his own conclusion, and was not required to resolve the dispute by referring to the reports of the parties.
(f) He was not required to give reasons for not forming an opinion which he did not reach, even if that opinion was formed by someone else: Wingfoot at [65].
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, limited to the grounds of appeal on which the appeal is made.
At [4] of the Medical Assessment Certificate, the Medical Assessor took a history of injury to both shoulders on 11 November 2020, and of surgery to the right and left shoulders on 10 August 2021 and 5 April 2022 respectively. He noted that “MRI scans of the shoulder demonstrated high grade partial thickness tears involving the supraspinatus”.
At [6], he noted reports of an “unremarkable” X-ray of both shoulders on 14 July 2020, of MRI’s of both shoulders on 1 February 2021 and 28 March 2023, and of an MRI of the left shoulder on 17 January 2022. The MRI of 1 February 2021, he said, disclosed OA of the right and left AC joints. He did not note that OA was disclosed in any of the other studies.
At [8d], he answered “no” to the question as to whether there was any proportion of impairment was due to a pre-existing condition or abnormality.
At [11a], in answer to a question whether the worker suffered from relevant previous injuries, pre-existing conditions or abnormalities, he answered, “Nil relevant”.
At [11c], he found, “There is no deductible proportion”.
At [10], he assessed 11% whole person impairment in respect of each shoulder, on the basis of restricted range of motion.
At [10c], he noted the differences between his assessment and the assessments of Dr Gupta and Dr New. He did not mention the reports of Dr Bosanquet, though those reports were provided to him.
Dr Bosanquet had last examined the worker on 12 September 2023. From his assessment of that date, he deducted one-third to account for degenerative changes in the AC joint of each shoulder. Those changes were referred to as “AC joint arthrosis” in his summaries of MRI scans dated 17 January 2022 (left shoulder) and 28 March 2023 (both shoulders).
Osteoarthritis of the AC joint of the left shoulder (described as “mild”) and of the right shoulder (described as “moderate”), in each case without spurring, was disclosed in a radiologist’s report dated 1 February 2021, which was also provided to the Medical Assessor.
Consideration
In these proceedings, the worker sought compensation for impairment of the whole person as a result of injury on 11 November 2020. Though the box “deemed date” was not ticked on the originating process, the injury was described in the following terms:
“During the course of employment … he worked as a construction site supervisor. Due to the nature and conditions of his work, he experienced pain in both shoulders as part of his duties of tidying up worksites, rubbish collection and removal, which often involved repetitive heavy lifting such as regularly emptying Otto wheelie bins weighing up to 100kg to above shoulder level and emptying them into a 15 metre skip bin. Overtime [sic] the pain worsened which led to [sic] gradually his shoulders became [sic] increasingly painful over time. …”
This description was supported by the worker’s statement at [6] to [9]. At [6], the worker indicated that he was employed as a construction site supervisor from July 2018 to November 2020.
In his report of 9 May 2023 on which the worker relied, orthopaedic surgeon Dr New diagnosed bilateral rotator cuff syndrome, with a partial thickness tear of the supraspinatus and subacromial and subdeltoid bursitis on the left side, and a high-grade partial thickness tear of the supraspinatus and AC joint arthritis on the right. He considered there was a causal connection between employment and the diagnosed pathology due to the nature and conditions of work.
The description of injury in the Application to Resolve a Dispute, when read together with the worker’s statement at [6] to [9] and Dr New’s report, demonstrate that the worker alleged injury by way of disease of gradual onset, as a result of the nature and conditions of his employment. According to the history taken by Dr New, bilateral symptom onset commenced in 2019 without precipitating event.
Section 323(1) of the Workplace Injury Management and Workers Compensation Act 1998 provides, “… there is to be a deduction for any proportion of the impairment that is due to any previous injury … or that is due to any pre-existing condition or abnormality”.
Before a deduction can be made, the Medical Assessor must first identify a previous injury or pre-existing condition or abnormality.
As indicated, the employer relied on the opinion of Dr Bosanquet, who considered there was a pre-existing condition in each shoulder, namely OA of the AC joint, as demonstrated by the MRI’s dated 17 January 2022 and 28 March 2023 which he summarised in his report of 12 September 2023.
It was the task of the Medical Assessor to give reasons for his assessment, having regard to the medical and other evidence before him. That included the reports of Dr Bosanquet.
As indicated, he did not refer to the reports of Dr Bosanquet. That does not satisfy us that he did not consider the reports, or the summary of the radiological results which they contained. That material was available to the Medical Assessor. In the absence of persuasive evidence to the contrary, we are satisfied that he did have regard to it, and to the reports of the X-ray and three MRI’s which he summarised (though only in part) at [6] of the Medical Assessment Certificate.
It would have preferable for him to explain why he differed from Dr Bosanquet’s view that a deduction of one-third was appropriate, but he did not do so. However, as indicated, at [11a] he answered “Nil relevant” to a question as to whether there were relevant pre-existing conditions. In that context, the word “relevant” meant relevant to a deduction under s 323. To be relevant, a pre-existing condition must contribute to current impairment. The answer given was, in effect, a finding that there was no pre-existing condition that currently contributed to impairment. So far as it went, that answer was sufficient to explain why he made no deduction.
In circumstances where, as here, injury is alleged as a result of the nature and conditions of employment over time, any pre-existing condition must exist prior to the commencement of the conditions of employment relied on. In this case, they were the nature and conditions of employment from its commencement in July 2018.
In this case, before a deduction could be made under s 323, the Medical Assessor needed to identify a condition that was present prior to July 2018. The earliest of the MRI studies mentioned in the appellant’s submissions were the bilateral MRI’s conducted on 1 February 2021, which demonstrated mild OA of the left AC joint, and moderate OA of the right AC joint, in each case without spurring. Those studies were incapable of proving the existence of any condition prior to July 2018.
The same can be said of the “unremarkable” X-ray studies of 14 July 2020, and of Dr Bokor’s finding in his operation report of 10 August 2023, that there was a frayed degenerate bicep on the right.
Our attention has been drawn to no evidence which suggests the existence of any pre-existing condition of either shoulder prior to the commencement of employment in July 2018.
In those circumstances, it was well open to the Medical Assessor to find that, as he did, that there was no relevant pre-existing condition or abnormality.
We can identify no error.
Even if, contrary to our view, there was an inadequacy of reasons, we would not set aside the Medical Assessment Certificate because there is no utility in doing so. Were we to set aside the certificate on the basis of any alleged error, it would be our assessment that there is no deductible proportion, because we are not satisfied that the evidence establishes that there was any pre-existing condition of either shoulder.
Even if, contrary to our view, the evidence were capable of demonstrating a pre-existing condition of the AC joints as alleged, it does not contribute to the permanent impairment assessed, because impairment has been assessed by reference to restrictions in the range of motion. Range of motion is primarily the function of the gleno-humeral joint combined with scapulothoracic motion, not the function of the AC joint. OA of the AC joint does not restrict range of motion unless it does so through painful restriction of motion. This patient has not complained of pain at the AC joint or been diagnosed with pain in this region by any of his treating surgeons. Accordingly we are not satisfied that OA of the AC joints, even if pre-existing, contributes to current impairment.
For all those reasons, the Medical Assessment Certificate issued on 21 August 2024 is confirmed.
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