Manildra Meat Company Pty Ltd v L'Estrange
[2021] NSWPICMP 42
•9 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Manildra Meat Company Pty Ltd v L’Estrange [2021] NSWPICMP 42 |
| APPELLANT: | Manildra Meat Company Pty Ltd |
| RESPONDENT: | Allan Robert L’Estrange |
| APPEAL PANEL: | Member Carolyn Rimmer Dr John Brian Stephenson Dr Gregory McGroder |
| DATE OF DECISION: | 9 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Assessment of whole person impairment (WPI) of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee) as a result of the injury deemed to have occurred on 26 February 2016; Held- Panel concluded that AMS erred by assessing additional body parts which did not form part of the AMS referral; Panel considered it was open to the AMS to reach the view that no deduction should be made pursuant to section 323 in respect of the cervical spine, thoracic spine, lumbar spine and left shoulder; MAC revoked. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 January 2021 Manildra Meat Company Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of Approved Medical Specialist. The medical dispute was assessed by Dr Tim Anderson, an Approved Medical Specialist (AMS), who issued a Medical Assessment Certificate (MAC) on 18 December 2020.
The respondent to the appeal in Allan Robert L’Estrange (Mr L’Estrange).
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, and
· 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 ground(s) 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).
RELEVANT FACTUAL BACKGROUND
In these proceedings, Mr L’Estrange is claiming lump sum compensation in respect of an injury to the cervical spine, thoracic spine, lumbar spine, left upper extremity, right upper extremity, right lower extremity, left lower extremity and visual system as a result of an injury deemed to have occurred on 26 February 2016. Mr L’Estrange alleged that he was injured while employed by the Appellant from 2013 to 26 February 2016 performing work involving repetitive bending, lifting of heavy weights, the nature and conditions of which caused or materially aggravated the neck, right and left shoulders, left elbow and left wrist, right elbow and right wrist, upper back, lower back, left and right hips, right and left knees and impairment to each eye due to the effects of exacerbation of Mr L’Estrange’s mild dry eye condition.
In a Certificate of Determination dated 6 October 2020, Arbitrator Sweeney made orders including the following:
“1. The applicant suffered injury by way of aggravation of previous injuries or pre-existing conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on 27 February 2016 as a result of the nature of the applicant’s employment before that date.
2. Applicant’s employment the main contributing factor to the above injuries.
3. Respondent to pay the applicant’s medical and hospital expenses in respect of these injuries in accordance with section 60 of the Workers Compensation Act 1987 (the 1987 Act).
4. The applicant has not established that he suffered injury on or about 1 October
2014,1 October 2015, 1 November 2015 or in January 2016.
5. Remit the matter to the Registrar for referral to an Approved Medical Specialist to certify the degree of whole person impairment, if any, of the following:
(a) the cervical spine;
(b) the thoracic spine;
(c) the lumbar spine;
(d) the left upper extremity (left shoulder and left elbow);
(e) the right upper extremity (elbow and wrist);
(f) the right lower extremity (knee), and
(g) the left lower extremity (knee).”
In the Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 3 November 2020, the matter was referred to the AMS, Dr Tim Anderson, for assessment of whole person impairment (WPI) of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee) as a result of the injury deemed to have occurred on 26 [sic] February 2016. The Amended Referral noted that Mr L’Estrange was paid lump sum compensation in respect of 13% WPI on 11 April 2013 and that Mr L’Estrange had not established that he had suffered injury on or about 1 October 2014, 1 October 2015, 1 November 2015 or in January 2016.
The AMS examined Mr L’Estrange on 10 November 2020. He assessed 5% WPI of the cervical spine, 5% WPI of the thoracic spine, 7% WPI of the lumbar spine, 12% WPI of the left upper extremity, 4% WPI of the right upper extremity, 0% of the right lower extremity and 0 % of the left lower extremity. Therefore, the total assessment was 29% WPI in respect of the injury deemed to have occurred on 27 February 2016.
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.
The appellant requested that Mr L’Estrange be re-examined by a Medical Assessor, who is a member of the Appeal Panel. Mr L’Estrange opposed the request for re-examination.
Neither party requested that they be given an opportunity to make oral submissions to the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was unnecessary for Mr L’Estrange to undergo a further medical examination because there was sufficient evidence by way of medical reports and clinical investigations in relation to assessment of the cervical spine, thoracic spine, lumbar spine, left upper extremity, right upper extremity, right lower extremity and left lower extremity on which to make a determination.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the AMS 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 AMS 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.
The appellant’s submissions include the following:
Ground 1:
(a) The AMS erred by assessing additional body parts which did not form part of the AMS referral.
(b) Mr L’Estrange relied on the medical assessment of Dr Drew Dixon dated 27 November 2019. Dr Dixon assessed 8% WPI for lateral epicondylitis of the left elbow and subluxation of the left shoulder and 4% WPI for lateral epicondylitis of the right elbow and residual carpal tunnel symptoms.
(c) The Amended Referral to the AMS was for assessment of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee).
(d) The AMS assessed 7% right UEI and 3% left UEI relating to the shoulders.
Mr L’Estrange has not made a claim for lump sum compensation in respect of the right shoulder and the amended referral to the AMS did not request an assessment of the right shoulder. Therefore, the right shoulder assessment was conducted in error and should not form part of the MAC.(e) In relation to the left upper extremity, the AMS was confined to assessing
Mr L’Estrange’s left shoulder and left elbow consistent with Mr L’Estrange’s claim, the Arbitrator’s determination and the referral to the AMS. Mr L’Estrange has not made a claim for lump sum compensation in relation to the left wrist and/or neurological dysfunction of the left hand and the referral did not require an assessment of these body parts. Therefore, the assessment of the left wrist and neurological dysfunction of the left hand was conducted in error and should not form part of the MAC.Ground 2:
(f) The AMS erred by failing to make a deduction pursuant to s 323 of the 1998 Act despite the evidence that supported the making of a significant deduction.
(g) Mr L’Estrange commenced proceedings against his former employer in 2001 claiming lump sum compensation. On March 2011, Mr L’Estrange lodged an Application to Resolve a Dispute (ARD) claiming compensation including lump sum compensation resulting from frank injuries on 12 July 2000, 15 March 2002, 20 January 2004, 20 August 2004, 1 September 2004, 12 December 2005, 7 December 2006 as well as a disease injury and/or aggravation of a disease in the course of his employment from 1996 to 15 February 2008. Injuries pleaded while employed by RWR included the cervical spine, thoracic spine, lumbar spine, lacerations to the left hand, lateral epicondylitis of the left elbow and both knees and ankles. Mr L’Estrange claimed 26% WPI based on the assessment of
Dr Drew Dixon dated 1 December 2009.(h) The proceedings were referred to an AMS, Dr Alan Home who assessed 13% WPI made up of 0% cervical spine, 0% thoracic spine, 6% right upper extremity – carpal tunnel syndrome, 0% right shoulder and right elbow, 7% left upper extremity – carpal tunnel syndrome and left elbow, 0% left hip, knee and ankle and 0% right hip, knee and ankle. The AMS, Dr Home, later issued a second MAC limited to an assessment of the lumbar spine. Dr Home assessed 0% WPI for the lumbar spine.
(i) The AMS failed to take into account Mr L’Estrange’s pre-existing condition including injuries while employed by Edmonds Industries Pty Ltd (Edmonds) and RWR Management Services Pty Ltd (RWR). The AMS only referenced a non-work related fall from a horse in 2007 in which Mr L’Estrange fractured his left wrist and required surgery. The AMS concluded that this would have contributed to the subsequent dysfunction of the left forequarter. The AMS made no reference to the significant injuries sustained when working for RWR and Edmonds.
(j) The AMS appeared to believe that Mr L’Estrange’s entire period of employment in various abattoirs formed part of the current claim as opposed to the discrete period of employment by the appellant between October 2013 and 27 February 2016. The AMS referred to a long history of “copious injuries” over many years, crush fracture in the thoracic spine that probably occurred in about 2004, laceration to the left hand in 2005 with disruption of the extensor tendons and possible residual deficit of sensation, and an incident in January 2006 when a half carcase came off the rail and landed on him.
(k) The crush fracture and severe laceration of the left hand occurred prior to employment with the appellant.
(l) Medical evidence was provided to the AMS addressing the pre-existing conditions including the report of Dr Sun dated 5 November 2012, bone scan in 2004, CT scan in 2004.
(m) The AMS failed to explain how his assessment of impairment in the thoracic spine related to the injury in the current proceedings. The comments made by the AMS were limited to a review of the radiological investigations in 2004 and the AMS did not make reference to a diagnosis of the thoracic spine , which would suggest any impairment of the thoracic spine relating to an injury sustained in the employment with the appellant.
(n) The AMS failed to take into account the evidence and the weight of the evidence when concluding a deduction pursuant to s 323 of the 1998 Act was not applicable. In light of the prior complaints of pain and disability in the cervical spine, thoracic spine, lumbar spine and left shoulder a s 323 deductions should have been applied.
Ground 3:
(o) The AMS inadvertently referenced alleged frank injuries, despite Arbitrator Sweeney finding injuries on or about 1 October 2014, 1 October 2015, 1 November 2015 and in January 2016 were not established.
(p) On page 2 of the MAC, the AMS described in detail the frank injuries and tabulated injury to the neck and left knee in October 2014, injury to the neck, back, wrists, left knee and left hip in October 2015, injury to the neck, back, wrists, left knee and left hip in November 2015 and injury to the neck, wrists, left hip and right hip in January 2016. The AMS did not refer to the Arbitrator’s finding that the frank injuries were not established and instead appeared to take the frank injuries into consideration when making the assessment of WPI.
(q) The AMS was required to make an assessment of WPI that related to an aggravation of previous injuries or pre-existing conditions deemed to have occurred on 27 February 2016 as a result of Mr L’Estrange’s employment before that date. The lengthy reference to injuries outside the scope of the referral resulted in there being insufficient information in the MAC to link the assessments of WPI to an aggravation of previous injuries or pre-existing conditions deemed to have occurred on 27 February 2016 as a result of the nature of Mr L’Estrange’s employment before that date.
(r) The above errors resulted in the assessment being made on the basis of incorrect criteria and the MAC containing a demonstrable error.
(s) The MAC should be revoked.
The appellant’s submissions in response to the Notice of Opposition include the following:
(a) On 21 January 2021 Mr L’Estrange served a Notice of Opposition to the Appeal with submissions in response. In those submissions, Mr L’Estrange alleged that his employment as an abattoir worker from 1996 until 26 February 2016 was considered by Arbitrator Sweeney to be an aggravation of a disease pursuant to section 16 of the 1987 Act.
(b) Mr L’Estrange was previously compensated for injuries sustained during the course of his employment between 1996 to 15 February 2008 pursuant to s 15 of the 1987 Act. Between October 2013 and 27 February 2016 Mr L’Estrange was employed by the appellant/employer. Mr L’Estrange alleged that he suffered further injury during this employment as a result of several specific incidents and by reason of the general nature of his employment over that time.
(c) The appellant disputes that Mr L’Estrange raised the allegation of a disease injury or aggravation of a disease injury at the arbitration hearing before Arbitrator Sweeney, which included any period of employment prior to 2013.
(d) Arbitrator Sweeney concluded Mr L’Estrange suffered an aggravation of a disease injury as a result of his period of employment with the appellant between 2013 and 26 February 2016, pursuant to s 16 of the 1987 Act.
(e) Arbitrator Sweeney in his Statement of Reasons dated 6 October 2020 at paragraphs 5 and 6 of the Statement of Reasons wrote:
“Surprisingly, the applicant returned to work at abattoirs operated by the respondent in October 2013 and continued working until 26 February 2016. He alleges that he suffered further injury during this employment as a result of several specific incidents and by reason of the general nature of his employment over that time. His medical case is put by Dr Dixon, an orthopaedic surgeon, who was qualified by the applicant’s solicitor in a report of 27 November 2019. In that report Dr Dixon concludes:
“The nature and conditions of his employment from 2013 to 26 February 2016 where he performed repetitive bending and lifting of heavy weights have materially aggravated the injuries to his neck, shoulders, left elbow, left wrist, right elbow, right wrist, upper and lower back, right hip and both knees and were within disease provisions (Compensation Act) arising out of or during the course of his employment as a boner/labourer. He has contracted degenerative changes of his neck, shoulders, left elbow, left wrist, upper back, lower back, right and left hips, right and left knees, being a disease of such nature to be contracted by a gradual process, to which his employment as a boner/labourer was a substantially [sic] contributing factor”.
6. Relying on this report, the applicant’s solicitor made a claim for weekly benefits and permanent impairment compensation from the respondent on 19 November 2019.”
And at paragraphs 62, 64 and 67 of the Statement of Reasons:
“The uncontradicted specialist medical evidence medical evidence in the case is that the nature of the applicant’s work over the period to 26 February 2016 has caused injury probably by way of aggravation of his pre-existing conditions. The process has occurred gradually over the period of the applicant’s employment with the respondent.
…
64. I favour the view that each of the injuries alleged by the applicant are disease injuries. They were aggravated by micro-trauma in the applicant’s employment with the respondent in repetitive arduous work. They are injuries which “consist in” the aggravation of a disease for the purposes of section16 of the Workers Compensation Act 1987…”
….
67. I therefore find that the applicant suffered injuries to his wrists, elbows, right shoulder, neck, back, right hip and both knees as a result of the arduous nature of his employment with the respondent before 26 February 2016 and that his employment was either a substantial contributing factor to the injuries or the main contributing factor to the aggravation of a disease.”
(f) Mr L’Estrange suffered a disease injury pursuant to s 15 of the 1987 Act as a result of numerous injuries sustained between 1996 and 15 February 2008, for which he received lump sum compensation in the prior Commission proceedings (WCC2259/11).
(g) The appellant submitted that the entirety of Mr L’Estrange’s work history did not get taken into account, as alleged by Mr L’Estrange in the Notice of Opposition. Arbitrator Sweeney found Mr L’Estrange suffered an aggravation of his prior disease condition pursuant to s 16 of the 1987 Act, as a result of employment duties undertaken between 2003 and 26 February 2016 only.
(h) A s 323 deduction needs to be undertaken in respect of the prior work injury.
The respondent’s submissions include the following:
Ground 1:
(a) Arbitrator Sweeney found that Mr L’Estrange suffered injury by way of aggravation of previous injuries or pre-existing conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on 27 February 2016, as a result of the nature of Mr L’Estrange’s employment before that date.
(b) In the ARD, Mr L’Estrange pleaded injury to neck, right and left shoulders, left elbow, left wrist, right elbow, right wrist, upper bock, lower back, left and right hips, right and left knees being a disease of such a nature as to be contracted by a gradual process to which such employment as a boner/labourer was a substantial contributing factor. Mr L’Estrange then pleaded:
“For a number of years prior to the 26.02.2016, the Applicant was employed in the meat industry and this type of employment was o substantial contributing factor to the aggravation, acceleration, exacerbation and/or deterioration:
• Degeneration and strain of the neck;
• Degeneration and strain of the right and left shoulders;
• Degeneration and strain of the left elbow and left wrist;
• Degeneration and strain of the right elbow and right wrist;
• Degeneration and strain of the upper back;
• Degeneration and strain of the lower back;
• Degeneration and strain of the left and right hips;
• Degeneration and strain of the right and left knees
• Impairment to each eye …”(c) Arbitrator Sweeney referred the matter off to an AMS to determine WPI in respect of cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow) , right upper extremity (right elbow and right wrist), right lower extremity (knee) and left lower extremity (knee).
(d) The appellant submitted that the AMS assessed the left wrist and right shoulder which were not referred for assessment. The left wrist and right shoulder were referred to in paragraph 82(a) and in the Statement of Reasons and the Arbitrator inadvertently left out these injuries in paragraph 82 (e).
(e) Under “Discussion and Findings” at paragraphs 51 and 53, Arbitrator Sweeney referred to a consultation note of 5 September 2015 being consistent with
Mr L’Estrange’s left wrist symptoms and a certificate issued in respect of left wrist pain. At paragraph 61 Arbitrator Sweeney noted Mr L’Estrange complained to a medical practitioner of increasing left wrist symptoms during his employment and to Dr Maung contemporaneously with the cessation of his employment on 26 February 2016. At paragraph 63, Arbitrator Sweeney noted: "There seems little doubt, for example, that the condition of the applicant's risks, [sic] shoulders. and right hip con be characterised as disease injuries. It is unnecessary in the circumstances of this case to dissect each condition to determine whether it is an injury or a disease."(f) At paragraph 65, Arbitrator Sweeney wrote: “It is true that at the commencement of his employment the applicant was symptomatic in his wrists, shoulders, spine and knees. But the work he performed aggravated the pathology and exacerbated the symptoms of which he complains consistent with the hypothesis of Dr Dixon.”
(g) Arbitrator Sweeney should have referred Mr L’Estrange’s right shoulder in paragraph 82(e).
(h) At paragraph 67, Arbitrator Sweeney found that Mr L’Estrange suffered injury to his wrists, elbows, right shoulder, neck, back, right hip and both knees as a result of the arduous nature of his employment with the appellant before 26 February 2016.
(i) Even though the AMS was not asked to assess the left wrist and right shoulder, it was consistent with the injuries found in paragraph 82(a) of the Statement of Reasons dated 6 October 2020.
Ground 2:
(j) The AMS made a deduction of 1/10th for the condition in the left wrist due to pre-existing injury when he fell off a horse in 2007.
(k) In matter number 2259/11 in regard to Alan Robert L’Estrange v Edmonds Industries Pty Ltd and RWR Management Services Pty Ltd. The AMS, Dr Home assessed 0% of the cervical spine, 0% of the thoracic spine, 6% WPI of the right upper extremity for carpal tunnel syndrome, 0% for the right shoulder and right elbow, 7% WPI for the left upper extremity for carpal tunnel syndrome, 0% for the left hip, knee and ankle and 0% for the right hip, knee and ankle.
(l) Dr Home made no finding of a pre-existing injury which resulted in impairment of Mr L’Estrange’s cervical spine, thoracic spine, right upper extremity (shoulder and elbow. Dr Home made no findings in respect of the left shoulder.
(m) Smith v Mann [1932] 47 CLR 426 and other cases including Connair Pty Ltd v Frederiksen [1979] 53ALJ 505, indicate that, s 4(b)(i) of the 1987 Act, does not require that the particular disease was caused by a particular incident of the worker's employment at a particular time. It does not require proof that for example on a particular day, a particular happening in the course of employment caused or contributed to the existence of a disease. It is only necessary for the worker to establish that the disease was contracted in the course of employment, in this case, as a boner/ labourer and that the employment, that is, employment as a boner/ labourer was a substantial contributing factor to the contracting of it.
(n) As a result of the Arbitrator's determination, the AMS was required to accept an injury by way of aggravation of previous injury or pre-existing condition to
Mr L’Estrange’s neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on the 27 February 2016, as a result of the nature of the Mr L’Estrange’s employment before that date.(o) Once it is accepted that there is such an injury, it is incorrect to apportion to
pre-existing arthritic condition. Because Mr L’Estrange’s injuries were subject to a determination with a deemed date of injury pursuant to s 16, the entirety of the work history has to be taken into account when making the assessment.(p) In accordance with Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416, there was no evidence except for the 2007 injury to the left wrist and that he did not suffer from a pre-existing condition that predates his employment as a boner/ labourer given the nature of his injury.
(q) The AMS applied the correct deduction pursuant to s 323 of the 1998 Act.
Ground 3:
(r) The Arbitrator referred to “heavy lifting of pig carcasses” in 2008 (paragraph 23), slipping on a piece of fat (paragraph 27), slip and fall in in October 2015 (paragraph 33) and pushing a carcass across the slaughter floor (paragraph 42).
(s) However, Arbitrator Sweeney at paragraph 58 said “but it is not possible to isolate any identifiable pathological change or to establish any material aggravation of a disease at the time of the incidents”. Arbitrator Sweeney then went on at paragraph 63, to state as follows: "There seems little doubt, for example, that the condition of the applicant's risks (wrists), shoulders and right hip can be categorised as a disease injury. It is unnecessary in the circumstances of this case to dissect each condition to determine whether it is injury or a disease."
(t) At paragraph 64, Arbitrator found: "I favour the view that each of the injuries alleged by the applicant are disease injuries. They were aggravated by micro-trauma in the applicant's employment with the respondent in repetitive arduous work. They are injuries which consist in the aggravation of a disease for the purposes of a s.16 of the Workers Compensation Act 1987, (the 1987 Act)."
(u) The disease allegation as found by Arbitrator Sweeney refers to Mr L’Estrange’s employment at abattoirs from 1996 up until February 2016.The disease provisions do not refer simply to the work performed for the appellant.
(v) It was Mr L’Estrange’s work as an abattoir worker from 1996 until 26 February 2016, including frank injuries are incidents of the basis of Mr L’Estrange’s proven aggravation of a disease for the purposes of s 16 of the 1987 Act.
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. 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 role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the delegate has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, ‘the grounds of appeal on which the appeal is made’ was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
In this matter, the delegate has determined that he is satisfied that a ground of appeal under s 327(3 (d) is made out in relation to the AMS’s application of s 323 of the 1998 Act.
The Appeal Panel reviewed the history recorded by the AMS, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Medical Assessment Certificate
Under “Present symptoms” the AMS wrote:
“Pain in the neck radiating out to each side, mostly towards the right.
Pins and needles in the fingers. The left side is more affected than the right.
Right leg pins and needles radiating down to the foot.
Pain between the shoulder blades and also lower back pain with gross restriction of
movement and frequent spasms.”Under “Findings on physical examination” the AMS wrote:
“Mr L’Estrange was of average stature and well-muscled and powerful build. He came across as a stoical and fairly tough character.
Cervical Spine. There was pain throughout the cervical spine radiating down between the shoulder blades. There was associated tenderness. Movement of the head and neck was reduced and was painful, particularly in extension and lateral flexion to each side.
Thoracic Spine. As advised, there was pain between the shoulder blades. There was
Lower Back. Pain was located in the mid-line in the lower lumbar spine. Again, there was associated tenderness. On forward flexion, he could reach his mid-thighs with a McRae-Wright movement of 3.5cm. This is stiff. 5cm is the lower limit of normal. Extension was minimal. Lateral flexion and rotation to each side were only slightly reduced. The spinal curvatures were relatively normal. There was no scoliosis or muscle spasm.
Upper Limbs. He had the following shoulder movements:
MOVEMENT RIGHT LEFT
Flexion 160° 170°
Extension 40° 50°
Abduction 100° 140°
Adduction 40° 50°
Internal rotation 70° 80°
External rotation 70° 80°
The elbow movements were completely normal and symmetrical.
Wrist Movements
MOVEMENT RIGHT LEFT
Flexion 60° 40°
Extension 60° 30°
Radial deviation 20° 10°
Ulnar deviation 30° 20°
Sensation to pinprick was slightly reduced on the right side. This was a little patchy but
seemed to be most consistent in the C7 and C8 dermatomal distributions. On the left side, although there was now a normal range of movement of all digits, there was scarring over the dorsum of the hand on the radial side. This is likely to be associated with the event of 2005. Sensation was reduced, predominantly in the index and middle fingers.
The carpal tunnel decompression scars had healed well.
Reflexes were present at the elbows (C5 and 7) and at the wrists (C6) but were very difficult to demonstrate.
Lower Limbs. He walked reasonably normally. He could also walk on his heels and toes and could squat but found squatting and walking on his heels quite difficult.
The right leg was a little longer than the left. The calves had the same circumference. The right thigh was 2cm greater in circumference than the left.
No significant features were identified with the hips or the ankles. With the right knee, there was very slight laxity of the anterior cruciate ligament.
Sensation to pinprick was throughout the normal distribution, although was perceived more on the right side than on the left. Reflexes were present and equivalent at the knees (L4) and at the ankles (S1). Power of the extensor hallucis longus (L5) was equivalent.
Straight leg raising was conducted on the edge of the couch. He had no difficulty in fully extending each knee.”Under “Summary of injuries and diagnoses” the AMS wrote:
“Mr L’Estrange gives a history of copious slips and falls while working in an abattoir. This has been a very physically arduous occupation and there has been a powerful ethic of getting on with the job without complaining, almost regardless of one’s condition.
There have been several particularly serious issues which have occurred during his time at work. This has included the laceration to his left hand with the knife in 2005. The other issue of concern is the event of January 2016 when the Murray Grey half carcase came off the rail and landed on him. If the circumstances were accurate as described by him, he is particularly fortunate that he was not much more seriously injured.
At this assessment he continues to have gross dysfunction of his spinal column, shoulders and his left wrist particularly. There was relatively little to demonstrate with the lower limbs.”
Under “Reasons for Assessment”, the AMS wrote:
“The cervical spine is addressed in AMA 5 Page 392, Table 15-05. There is evidence of continuing dysfunction, although no radiculopathy. This places him into DRE Cervical Category II, which provides whole person impairment ranging between 5% and 8%, depending on his activities of daily living. At this stage, 5% is selected.
The thoracic spine is very similarly assessed in Table 15-04 on Page 389. Again, there is Category II with a whole person impairment of ranging between 5% and 8%. 5% is selected.
The lumbar spine is addressed on Page 384, Table 15-03. Again, there is no radiculopathy. DRE Category II is selected. In these circumstances, there is a further 2% for the activities of daily living, which raises this whole person impairment to 7%.Left Upper Extremity and Right Upper Extremity
Shoulders
| AMA 5 REFS | Movement | Right | %Right UEI | Left | % Left UEI |
| P 476 | Flexion | 160 | 1 | 170 | 1 |
| F16-40 | Extension | 40 | 1 | 50 | 0 |
| P477 | Abduction | 100 | 4 | 140 | 2 |
| F 16-43 | Adduction | 40 | 0 | 50 | 0 |
| P479 | Internal rotation | 70 | 1 | 80 | 0 |
| F16-46 | External Rotation | 70 | 0 | 80 | 0 |
| Subtotals | Right | 7 | Left | 3 |
Wrists
| AMA 5 REFS | Movement | Right | % Right UEI | Left | % Left UEI |
| P476 | Flexion | 60 | 0 | 40 | 3 |
| F-16-28 | Extension | 60 | 0 | 30 | 5 |
| P 469 | Radial deviation | 20 | 0 | 10 | 2 |
| F16-31 | Ulnar deviation | 30 | 0 | 20 | 2 |
| Subtotals | Right | 0 | Left | 12 |
There is now a deduction of 1/10th for the condition of the left wrist due to the pre-existing injury when he fell off the horse in 2007 and sustained a fracture which necessitated internal fixation. At the same time there was carpal tunnel decompression. (This deduction is made at this stage since it refers only to the left wrist and not to the left shoulder, which also contributes to the upper extremity impairment.)
Neurological dysfunction of the left hand is identified that the radial palmar digital nerve and the ulnar palmar digital nerve of both the index and little fingers have been affected. The maximum whole person impairment for the radial nerve of each finger is 5% UEI and for the ulnar nerve of each finger, is 4% UEI. This totals to 18%. This is further modified by Table 15-10 on Page 482. Grade II is selected with 50% of the maximum. This gives an upper extremity impairment of 9%.Combined Values
| Factor | Shoulders | Elbows | Wrists | Neuro | Total |
| Right upper extremity | 7 | 0 | 0 | 0 | 7 |
| Left upper extremity | 3 | 0 | 10 | 9 | 20 |
From Page 439, Table 16-03, these convert to % WPI of 4% for the right upper extremity and 12% for the left upper extremity.
No significant dysfunction was identified at this assessment with either lower limb which would generate a whole person impairment.”
In commenting on the deduction for the proportion of the impairment that was due to previous injury or pre-existing condition or abnormality, the AMS wrote:
“I was able to identify neurological dysfunction, particularly with the left hand due to the fall off the horse in 2007 where there was a fracture to the left wrist with associated internal fixation and decompression of the carpal tunnel. This would almost certainly predispose to further degenerative change in the wrist with associated restriction of movement. I am therefore persuaded that there should be a one-tenth deduction from this component of his whole person impairment. This deduction cannot be applied further on since it relates only to the left wrist and not to the left shoulder, which also contributes to the dysfunction of the left upper extremity.”
Ground 1 – Assessment of additional body parts which did not form part of the AMS referral
The appellant submitted that the AMS erred by assessing additional body parts which did not form part of the AMS referral. In particular, the appellant argued that the AMS assessed the left wrist and right shoulder which were not referred for assessment.
The Appeal Panel reviewed the evidence in this matter.
The AMS assessed 7% upper extremity impairment (UEI) relating to the right shoulder. The AMS also assessed 10% UEI relating to the left wrist and 9% UEI relating to neurological dysfunction of the left hand.
Mr L’Estrange based his claim on the medical assessment of Dr Drew Dixon provided in a report dated 27 November 2019. Dr Dixon assessed 8% WPI for lateral epicondylitis of the left elbow and subluxation of the left shoulder and 4% WPI for lateral epicondylitis of the right elbow and residual carpal tunnel symptoms. Dr Dixon did not make an assessment in that report in respect of left wrist or in respect of the right shoulder.
In the Certificate of Determination dated 6 October 2020 Arbitrator Sweeney found that
Mr L’Estrange suffered injury by way of aggravation of previous injuries or pre-existing conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on 27 February 2016, as a result of the nature of the applicant's employment before that date.
Arbitrator Sweeney remitted the matter to the Registrar for referral to an AMS to certify the degree of WPI, if any, of the cervical spine, the thoracic spine, the lumbar spine, the left upper extremity (left shoulder and left elbow) , the right upper extremity (right elbow and right wrist), the right lower extremity (knee) and the left lower extremity (knee).
The Amended Referral to the AMS was for assessment of the cervical spine, thoracic spine, lumbar spine, left upper extremity (left shoulder and left elbow), right upper extremity (elbow and wrist), right lower extremity (knee) and left lower extremity (knee).
Mr L’Estrange did not made a claim for lump sum compensation in respect of the right shoulder or in respect of the left wrist and/or neurological dysfunction of the left hand. The amended referral to the AMS did not request an assessment of the right shoulder or of the left wrist and/or neurological dysfunction of the left hand. The Appeal Panel considered that the AMS was confined to assessing the body parts set out in the Amended Referral and assessment of the body parts not specified in the Amended Referral, that is the right shoulder and the left wrist and neurological dysfunction of the left hand was an error.
Mr L’Estrange submitted that the left wrist and right shoulder were referred to in various paragraphs of the Statement of Reasons and in particular at paragraph 82(a) but Arbitrator Sweeney inadvertently left out these injuries in paragraph 82 (e).
The question of whether there was an error in the Statement of Reasons is not a matter that the Appeal Panel can consider. If Mr L’Estrange considered that Arbitrator Sweeney inadvertently left out these injuries to the left wrist and right shoulder in paragraph 82 (e), he should have requested a reconsideration or lodged an appeal. Further, if Mr L’Estrange considered that the Amended Referral contained an error, that matter should have been raised with the Registry before the medical examination by the AMS.
Ground 2 – Section 323 Deduction
The appellant submitted that the AMS erred by failing to make a deduction pursuant to s 323 of the 1998 Act despite evidence that supported the making of a significant deduction. The appellant argued that the AMS only referred to a non-work related fall from a horse in 2007 in which Mr L’Estrange fractured his left wrist and the AMS made a deduction of 10% for the condition in the left wrist due to pre-existing injury.
The appellant argued that the AMS made no reference to significant injuries sustained when Mr L’Estrange worked for RWR and Edmonds. The appellant contended that the AMS appeared to believe that Mr L’Estrange’s entire period of employment in various abattoirs formed part of the current claim as opposed to the discrete period of employment by the appellant between October 2013 and 27 February 2016.
Mr L’Estrange was employed in abattoirs by Edmonds and RWR between 1996 and 15 February 2008. He then ceased work. Mr L’Estrange then commenced work with the appellant in October 2013 and continued working until 26 February 2016.
Mr L’Estrange commenced proceedings (the 2011 proceedings) in the Workers Compensation Commission in 2011 (Matter Number 2259/2011), making a claim for weekly benefits, medical expenses and lump sum compensation against RWR and Edmonds. The claim for lump sum compensation in 2011 was based on the medical assessment of Dr Drew Dixon provided in a report dated 1 December 2009. Dr Dixon’s assessment included 5% WPI for the cervical spine, 5% WPI for the thoracic spine, 7% WPI for the lumbar spine, 13% UEI for the left shoulder and 3% UEI for the residual carpal tunnel in the left wrist (giving a total of 8% WPI for the left upper extremity), 13% UEI for the right shoulder and 8% UEI for residual carpal tunnel symptoms in the right arm (giving a total of 13% WPI for the right upper extremity), 2% WPI for the right lower extremity and 5% WPI for the left lower extremity. This resulted in a combined total of 26% WPI. Dr Dixon noted that there were no symptomatic pre-existing conditions apart from the previous compound fracture of the left wrist.
In a report dated 3 August 2010, Dr James Bodel made an assessment of WPI in respect of injuries sustained in the employment of Edmonds. Based on Mr L’Estrange’s clinical presentation at the time, Dr Bodel assessed 0% for the cervical spine, 0% for the lumbar spine, 0% for the thoracic spine, 2% UEI for each elbow, 10% UEI for residual sensory loss in the median nerve distribution for both the left wrist and right wrist. This was converted to 7% WPI for each upper extremity and an additional 1% was assessed for scarring on the left hand. Dr Bodel made no deduction pursuant to s 323 of the 1998 Act.
At the time of the earlier proceedings, Mr L’Estrange complained of disabling symptoms in his cervical, thoracic and lumbar spine, symptoms in his upper extremities consistent with carpal tunnel syndrome and epicondylitis and in his lower extremities, post-traumatic chondromalacia patella with retropatellar crepitus in both knees, synovitis of both ankles, and mild post-traumatic stiffness of the left ankle.
In the 2011 proceedings, the matter was referred to an AMS, Dr Home, for assessment of WPI. The AMS, Dr Home in a MAC dated 3 October 2012 assessed 0% of the cervical spine, 0% of the thoracic spine, 6% WPI of the right upper extremity for carpal tunnel syndrome, 0% for the right shoulder and right elbow, 7% WPI for the left upper extremity for carpal tunnel syndrome, 0% for the left hip, knee and ankle and 0% for the right hip, knee and ankle. In a later MAC dated 13 December 2011, Dr Home assessed 0% WPI of the lumbar spine.
Dr Home made no finding of a pre-existing injury which resulted in impairment of
Mr L’Estrange’s cervical spine, thoracic spine, lumbar spine right upper extremity (shoulder and elbow). Dr Home made no findings in respect of the left shoulder.Mr L’Estrange has been compensated for injuries sustained during the course of his employment between 1996 to 15 February 2008 pursuant to s 15 of the 1987 Act. The compensation was paid in respect of injuries to the right upper extremity for carpal tunnel syndrome (6% WPI) and to the left upper extremity for carpal tunnel syndrome (7% WPI).
In these proceedings, Arbitrator Sweeney determined that Mr L’Estrange suffered injury by way of aggravation of previous injuries or pre-existing conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on 27 February 2016 as a result of the nature of the applicant’s employment before that date.
The matter was remitted to the Registrar to be referred for assessment of WPI of the cervical spine, the thoracic spine, the lumbar spine, the left upper extremity (left shoulder and left elbow), the right upper extremity (right elbow and right wrist), the right lower extremity (knee) and the left lower extremity (knee).
The AMS made a deduction of 1/10th for the condition in the left wrist due to pre-existing injury when he fell off a horse in 2007. The AMS concluded that this would have contributed to the subsequent dysfunction of the left forequarter and made a deduction of 10% for the condition in the left wrist due to pre-existing injury. However, this particular deduction is no longer relevant as the Appeal Panel has determined that the assessment by the AMS of the left wrist and neurological dysfunction of the left hand was an error and that such assessment should not have been made.
In terms of the argument that the AMS should have made a deduction in respect of the significant injuries sustained by Mr L’Estrange when he worked for RWR and Edmonds, the Appeal Panel reviewed the evidence concerning Mr L’Estrange’s condition before he started work with the appellant. It appeared that there had been significant improvement in his condition, such as to enable him to commence work with the appellant in October 2013. His employment with the appellant was physically demanding and arduous work and he continued in that employment until 26 February 2016.
The clinical notes from Young District Medical Centre recorded consultations on: (i) 3 July 2013 for nausea; (ii) 6 September 2013 for “neck pain but also CTS – surgery done”; (iii) 2 October 2013 for “vertebral crush fracture T4” ; (iv) 18 June 2014 for cough; (v) 4 July 2014 for a skin check; (vi) 8 August 2014 for a work certificate; (vii) 5 September 2014 for flu; (viii) 9 September 2014 for gastroenteritis; (ix) 16 October 2014 for upper respiratory tract infection; (x) 3 November 2014 for vomiting and diarrhoea; (xi) 15 January 2015 for diarrhoea; (xii) 20 January 2015 (no notes); (xiii) 26 February 2016 for left wrist pain; (xiv) 21 April 2016 for bilateral wrist pain; (xv) 2 August 2016 for neck pain, and (xvi) 5 December 2016 for neck pain. These entries did not suggest that Mr L’Estrange was experiencing any significant problems in functioning when he started work with the appellant and during the first two years employment with the appellant.
Arbitrator Sweeney noted (at paragraph 55) that “While there are complaints of spinal pain in the medical record from time to time It was not until late 2016 that the applicant was referred for physiotherapy for his spinal pain and, subsequently, for his hip pain.”
For a deduction to be made under s 323 of the 1998 Act, there must be evidence that there is a pre-existing injury, condition or abnormality and that this contributes to the impairment (Cole v Wenaline Pty Ltd (2010) NSWSC 78) and that “assumption will not suffice” (Fire & Rescue NSW v Clinen 92013) NSWSC 629).
The submissions of the appellant referred only to the assessment made by Dr Dixon dated 27 November 2009, a report by Dr Sun dated 5 November 2012, a bone scan in 2004 and a CT scan in 2004. Dr Dixon’s assessment of WPI in 2009 was at odds with the assessments made by Dr Bodel in 2010 and by Dr Home in late 2012. The Appeal Panel considered that the assessments made by Dr Bodel and by the AMS, Dr Home, of WPI were to be preferred. In particular, the Appeal Panel considered that the assessment of the AMS, Dr Home, was evidence that established that there was no pre-existing condition which contributed to the impairment assessed by the AMS, Dr Anderson.
In a report of 5 November 2012, Dr Sun noted that Mr L’Estrange‘s injuries included T4 and T9 vertebral trauma and fracture right radius and ulna in 2004, bilateral carpal tunnel in 2007 and neck and back pain in 2008. He wrote: “ Bone scan in 2004 showed T9 abnormal uptake and CT scan in 2004 showed 20% loss of height and anterior wedging of T5 and T6… He was recently seen by Dr Dixon. He complained of worsening left shoulder and bilateral knee symptoms.” Dr Sun issued Mr L’Estrange with a medical certificate to allow him to look for light duties.
The Appeal Panel noted that in a report dated 5 May 2008, Dr Sun reported that
Mr L’Estrange complained of intermittent neck pain with associated headaches. However,
Dr Sun noted on examination that there was a full range of movement in the cervical spine and upper limbs and no muscle wasting. In a report dated 2 June 2008, Dr Sun reported that CT of the cervical spine was normal.The question of injury to the thoracic spine was considered by the Appeal Panel in the 2011 proceedings. Dr Home, AMS, had assessed 0% of the thoracic spine and the Appeal Panel confirmed that assessment. The Appeal Panel noted that Dr Dixon in his reports of 26 November 2009 and 20 December 2009 diagnosed “thoracic back strain with probable bony contusion at T9 and a probable wedge fracture of TS which was quiescent on bone scanning with post traumatic stiffness of his thoracic spine” as a result of the injuries sustained as alleged. Dr Dixon assessed DRE Category II yielding 5% WPI.
The Appeal Panel in the 2011 proceedings noted that Dr Home, the AMS, examined the thoracic spine and recorded the following findings: "Examination of the thoracic spine is normal. There is no muscle guarding, no spasm, a full range of motion and no signs of radiculopathy." The Appeal Panel confirmed the assessment made by Dr Home on the basis of the report by the radiologist, Dr Iain Duncan, on 13 April 2004. Dr Duncan reported that the T5 abnormality "is likely to be longstanding or clinically irrelevant", and the "change at T9 is mild but would be consistent with a recent injury at the T9 level, however the degree of uptake and the lack of hyperaemia at this level suggests bone bruising rather than a fracture". The Appeal Panel in the 2011 proceedings was of the view that this assessment carried out by an expert who actually saw the investigations, was consistent with the clinical picture, and the injury as reported by the Mr L’Estrange and did not agree with the assessment of Dr Dixon, who had interpreted the findings.
The x-ray dated 26 February 2004 which reported "no significant spondylosis or disc abnormality seen but there is 20% wedging of the TS vertebral body and is unusual in this age group unless there has been prior trauma or reason for osteoporosis such as steroid use"; the bone scan of the thoracic spine dated 13 April 2004, which reported, “The TS abnormality shown on x-ray is not metabolically active and is therefore likely to be longstanding or clinically irrelevant. The change at T9 is mild but would be consistent with a recent injury at the T9 level however the degree of uptake and the lack of hyperaemia at this level suggests bone bruising rather than a fracture”; a CT scan of the thoracic spine dated 13 April 2004, which reported, "Bone pain while doing heavy work. 20% decreased height at TS. Pain sited at Tl0 to T12 ..... There is minor wedging of the TS and T6 vertebral bodies. However, this is thought to be more likely to be developmental rather than related to wedge compression fractures".
The AMS in this matter found dysfunction in the thoracic spine noting that it was an assessment similar to that made for the cervical spine. The Appeal Panel was satisfied that the AMS made a diagnosis in respect of the thoracic spine and carried out a proper examination of the spine.
While the Appeal Panel accepted that Mr L’Estrange had pre-existing injuries or a pre-existing condition in the cervical spine, thoracic spine, lumbar spine and left shoulder, the question to be addressed was whether these conditions contributed to the impairment assessed by the AMS. There must be evidence supporting the deduction to be made. On balance, the Appeal Panel was satisfied that there the pre-existing injuries or conditions in the cervical spine, thoracic spine, lumbar spine and left shoulder did not contribute to the injury assessed by the AMS. The weight of the evidence did not support a finding that the pre-existing injuries in the cervical spine, thoracic spine, lumbar spine and left shoulder contributed to the impairment assessed by the AMS.
On balance the Appeal Panel was satisfied that the AMS took into account the evidence when conducting his assessment and considering whether to make a deduction pursuant to s 323 of the 1998 Act. The AMS did make a 10% deduction in respect of pre-existing injury to the left wrist. The Appeal Panel considered that after taking into account the applicant’s statements, the clinical notes of the general practitioner, the medical report of Dr Bodel, the decision of the Appeal Panel in the 2011 proceedings and the MAC of Dr Home (AMS) it was open to the AMS to reach the view that no deduction should be made pursuant to s 323 in respect of the cervical spine, thoracic spine, lumbar spine and left shoulder.
Ground 3 - the AMS inadvertently referenced alleged frank injuries, despite Arbitrator Sweeney finding injuries on or about 1 October 2014, 1 October 2015, 1 November 2015 and in January 2016 were not established
The appellant submitted that the AMS described in detail the frank injuries including injury to the neck and left knee in October 2014, injury to the neck, back, wrists, left knee and left hip in October 2015, injury to the neck, back, wrists, left knee and left hip in November 2015 and injury to the neck, wrists, left hip and right hip in January 2016 and did not refer to the Arbitrator’s finding that the frank injuries were not established. The appellant argued that the AMS appeared to take the frank injuries into consideration when making the assessment of WPI.
The AMS was required to make an assessment of WPI that related to an aggravation of previous injuries or pre-existing conditions deemed to have occurred on 27 February 2016 as a result of Mr L’Estrange’s employment before that date. The appellant submitted that the lengthy reference to injuries outside the scope of the referral resulted in there being insufficient information in the MAC to link the assessments of WPI to an aggravation of previous injuries or pre-existing conditions deemed to have occurred on 27 February 2016 as a result of the nature of Mr L’Estrange’s employment before that date.
The Appeal Panel agreed that Arbitrator Sweeney in the Statement of Reasons referred to “heavy lifting of pig carcasses” in 2008 (paragraph 23) , slipping on a piece of fat (paragraph 27), slip and fall in in October 2015 (paragraph 33) and pushing a carcass across the slaughter floor (paragraph 42).
However, at paragraph 58 Arbitrator Sweeney said: "…but it is not possible to isolate any identifiable pathological change or to establish any material aggravation of a disease at the time of the incidents." Arbitrator Sweeney then went on at paragraph 63, to state as follows: "There seems little doubt, for example, that the condition of the applicant's risks (wrists), shoulders and right hip con be categorised as a disease injury. It is unnecessary in the circumstances of this case to dissect each condition to determine whether it is injury or a disease."
At paragraph 64, Arbitrator Sweeney found:
"I favour the view that each of the injuries alleged by the applicant are disease injuries. They were aggravated by micro-trauma in the applicant's employment with the respondent in repetitive arduous work. They are injuries which consist in the aggravation of a disease for the purposes of a s.16 of the Workers Compensation Act 1987, (the 1987 Act)."
Arbitrator Sweeney found that each of the injuries alleged were disease injuries, aggravated by micro trauma in Mr L’Estrange’s employment with the appellant in repetitive arduous work. This employment with the appellant was from October 2013 until 26 February 2016.
In the Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist dated 3 November 2020, the issues determined by the Arbitrator were set out as follows:
“1. The applicant suffered injury by way of aggravation of previous injuries or pre-existing conditions to his neck, back, wrists, elbows, right shoulder, right hip and both knees deemed to have occurred on 27 February 2016 as a result of the nature of the applicant’s employment before that date.
2. Applicant’s employment the main contributing factor to the above injuries.
3. Respondent to pay the applicant’s medical and hospital expenses in respect of
these injuries in accordance with section 60 of the Workers Compensation Act 1987
(the 1987 Act).
4. The applicant has not established that he suffered injury on or about 1 October 2014, 1 October 2015, 1 November 2015 or in January 2016.”While the AMS did not specifically refer to the issues determined by Arbitrator Sweeney, the Appeal Panel was satisfied that the AMS was aware of those determinations. The Appeal Panel regarded the references to the various frank injuries as part of the history that the AMS needed to obtain and also providing some context to the work duties that Mr L’Estrange performed. The AMS did not conclude in the MAC that Mr L’Estrange sustained a frank injury in any of these incidents.
The Appeal Panel was not persuaded in respect of Ground Three that the AMS erred in referring to any of these incidents or that the AMS applied incorrect criteria in making his assessment.
In summary, the first ground of appeal was made out. The Appeal Panel considered that the AMS was confined to assessing the body parts set out in the Amended Referral and assessment of the body parts not specified in the Amended Referral, that is the right shoulder and the left wrist and neurological dysfunction of the left hand was an error.
For the left upper extremity, the AMS assessed 20% UEI which included 3% for the shoulders, 0% for the elbow, 10% for the wrist and 9% for neurological dysfunction. After removing the assessment made for the wrist and neurological dysfunction, there was a residual assessment of 3% UEI for the shoulder that was converted to 2% WPI.
For the right upper extremity, the AMS assessed 7% UEI for the shoulder, 0% for the elbow and 0% for the wrist. After removing the 7% assessment for the shoulder, the assessment for the right upper extremity was 0% UEI or 0% WPI.
The Appeal Panel therefore assessed 5% WPI for the cervical spine, 5% WPI for the thoracic spine, 7% WPI for the lumbar spine, 2% WPI for the left upper extremity, 0% WPI for the right upper extremity, 0% WPI for the left lower extremity and 0% WPI for the right lower extremity. This results in a total impairment of 18% WPI as a result of the injury deemed to have occurred on 27 February 2016.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 December 2020 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Cervical spine | 27/2/16 (deemed) | Chap 4 P24 | P392 T15-05 | 5% | 0 | 5% |
| 2.Thoracic spine | 27/2/16 (deemed) | Chap 4 P24 | P389 T 15-04 | 5% | 0 | 5% |
| 3.Lumbar spine | 27/2/16 (deemed) | Chap 4 P24 | P384 T 15-03 | 7% | 0 | 7% |
| 4.Left upper extremity | 27/2/16 (deemed) | Chap 2 P10 | P 476 F16-40 P477 F16-43 P479 F16-46 P439 T16-03 | 2% | 0 | 2% |
| 5.Right upper extremity | 27/2/16 (deemed) | 0% | 0 | 0% | ||
| 6.Right lower extremity | 27/2/16 (deemed) | Chap 3 P13 | Chap 17 | 0% | 0 | 0% |
| 7. Left lower extremity | 27/2/16 (deemed) | Chap 17 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 18% | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Carolyn Rimmer
Member
Dr John Brian Stephenson
Medical Assessor
Dr Gregory McGroder
Medical Assessor
9 April 2021
4
0