Metal Manufacturers v Hughes
[2024] NSWPICMP 306
•21 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Metal Manufacturers v Hughes [2024] NSWPICMP 306 |
| APPELLANT: | Metal Manufacturers Limited |
| RESPONDENT: | Robert Lawrence Hughes |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Drew Dixon |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| DATE OF DECISION: | 21 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal against failure by Medical Assessor to apply section 323 deduction; whether crane driver worker with many previous awards in his favour should have been the subject of section 323 deductions; worker been employed since 1988 when he was 28yrs; Held – the injury was a deemed injury and the appellant employer had failed to establish that the worker was suffering any pre-existing condition prior to his employment; Craigie v Faircloth & Reynolds Pty Ltd and Ors and Cullen v Woodbrae Holdings Pty Ltd referred to and applied; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 October 2023 Metal Manufacturers Limited, the appellant employer lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 18 September 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
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 Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 24 August 2023 an amended referral was made for an assessment of WPI caused by injury to the cervical spine, the lumbar spine, the left upper extremity (shoulder) and the right upper extremity (shoulder and wrist) deemed to have occurred on 16 November 2021. Previous awards were noted, and we have set out the terms of the Order for remittal as part of the appellant employer’s submissions.
Mr Hughes was employed as a multiskilled labourer including crane driving.
He worked for the Metal Manufacturers Group for over 30 years, predominantly in arduous physical labourer.
He had suffered many injuries in the past with lower back symptoms and bilateral shoulder dysfunction.
In respect of the latter Mr Hughes came to surgery on the right acromioclavicular joint in 1998 and a rotator cuff tear repair in August 2018, on the left and on the right in June 2020.
A revision procedure was conducted on 16 November 2018 to the left rotator cuff repair.
He had been identified with carpal tunnel syndrome which was surgically managed by Dr Stuart Jensen on the right in September 2017 and the left on October 2017.
The Medical Assessor awarded a Combined Table Value of 31% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination, as no error had been established.
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.
Medical Assessment Certificate
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 which have been considered by the Appeal Panel.
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 MAC
The Medical Assessor noted that Mr Hughes had been employed by the appellant employer for over 30 years in physically arduous labouring as we noted under the Factual Background. He said at [4]:[1]
“[Mr Hughes] has a history of copious occasions in which he has hurt himself. The condition of his lower back, which seems to have been most prevalent, was in 1995.”
[1] Appeal papers page 24.
In discussing details of previous or subsequent accidents, injuries or conditions the Medical Assessor said:[2]
“Details of any previous or subsequent accidents, injuries or conditions:
So far as can be established in assessing Mr Hughes physically and also reviewing the
extensive details in the file, there does not appear to be any pre-existing or subsequent condition associated with his neck, lower back or either of his upper limbs”.
[2] Appeal papers page 24.
At [8] of the MAC the following appeared:[3]
“e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality?
No.
f. If so, please indicate which body part/system is affected by the previous injury, preexisting condition or abnormality.
Although there do appear to be some pre-existing features, it is likely that these are still
associated with his occupation.”
[3] Appeal papers page 26.
At [11] of the MAC the following appeared:[4]
“11. DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
Although Mr Hughes has had a variety of features associated with his neck and upper limbs, and also his lower back, all of this seems to be fairly closely associated with his many years of work in heavy duty labouring at Metal Manufacturers. Therefore, there is no application of a deduction.”
SUBMISSIONS
[4] Appeal papers page 28.
The appellant employer
The appellant employer submitted that the Medical Assessor had not properly applied the provisions of s 323 of the 1998 Act. It referred to seven workers compensation claims Mr Hughes had made since 1995.
The appellant employer noted these claims had been listed in the direction made by Member John Turner on 21 August 2023 as part of the referral, which stated:
“The Commission directs:
1. By consent the date of injury in the Application to Resolve a Dispute (ARD) is amended by deleting ‘2/07/2018’ and inserting in place thereof ‘16/11/2021’. The date of injury of 16/11/2021 is a deemed date.
2. By consent I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a. Date of injury: 16 November 2021 (deemed).
b. Body systems / parts:
i. Lumbar spine
ii. Cervical spine
iii. Right upper extremity (shoulder and wrist)
iv. Left upper extremity (shoulder)
c. Method of Assessment: Whole person impairment
3. The documents to be reviewed by the Medical Assessor are:
a. ARD and attached documents,
b.Reply and attached documents, and
c. This Direction.
4. The applicant has previously been compensated for the following permanent impairments:
a. By Consent Orders as at 29/11/2001 (Compensation Court of NSW - Matter No. 33355 of 2001):
i. $9,000 in respect of 15% impairment to the back.
ii. $3,750 in respect of 5% loss of use of the right leg at or above the knee.
iii. $3,750 in respect of 5% loss of use of the left leg at or above the knee.
iv. $10,000 in respect of pain and suffering.
b. By Consent Orders dated 26/06/2002 (Compensation Court of NSW - Matter No. 33355 of 2001):
i. $10,000 in respect of 12.5% loss of use of the right arm at or above the elbow.
ii. $2,000 in respect of 5% impairment to the neck.
iii. $5,000 in respect of pain and suffering.
c. By Complying Agreement dated 4/02/2009:
i. $8,250 in respect of 6% whole person impairment to the cervical spine.”
The appellant employer submitted that this evidence clearly established that Mr Hughes had suffered prior injuries and indeed had received compensation for them.
We were referred to the Medical Assessor’s opinion that there was no deduction at [8e] and [11] of the MAC.
The appellant employer submitted that the Medical Assessor had fallen into error as he had failed to apply a deduction pursuant to s 323 in light of that evidence.
It was submitted that “the deduction is inadequate…” (We would observe in passing that there was no deduction at all.)
The appellant referred us to the terms of s 323, and to a range of well-known authority on its application to various factual situations.
The appellant employer submitted, uncontroversially, that if a pre-existing was asymptomatic a deduction could nonetheless be made.[5]
[5] The authorities cited were D'Aleo v Ambulance Service of New South Wales (NSWCA, 12 December 1996, unrep); Matthew Hall Pty Ltd v Smart [2000] NSWCA 284; 21 NSWCCR 34 at [30]-[32]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [13]; Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [42] to [43], Government Cleaning Service v Ellul (1996) 13 NSW CCR 344 at [349].
The appellant employer submitted that the evidence clearly established that Mr Hughes had been in receipt of compensation for the claimed injuries and that therefore the Medical Assessor was “in no position” to find the provisions of s 323 were not applicable.
The appellant employer submitted that perhaps the Medical Assessor took that course because there were table of disabilities assessments in the past, and it was too difficult to assess. If that were the case, the appellant employer posited, then the Medical Assessor had ignored the provisions of s 323 (2).
The appellant employer submitted that under the terms of that sub-section at the very least a 10% deduction should have been made.
Robert Lawrence Hughes (the respondent)
The respondent submissions were written by Mr Andrew Parker of counsel. Mr Parker also referred us to relevant authority as to the application of s 323. He submitted after an exhaustive survey of the relevant authorities at [41] of the submissions:[6]
“The case is a disease injury contracted over a period of decades. It is plainly an injury under s 4(b)(i). That is how it was approached by MA Dr Anderson.”
DISCUSSION
[6] Appeal papers page 21.
Section 323 of the 1998 Act provides relevantly:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.”
In Craigie v Faircloth & Reynolds Pty Ltd and Ors[7] Johnson J discussed a previous decision of the Supreme Court, Cullen v Woodbrae Holdings Pty Ltd.[8] Craigie was concerned with an appeal from a Medical Panel that had been referred to the decision of Cullen which nonetheless confirmed a deduction made by the Medical Assessor in that case.
[7] [2021] NSWSC 1211.
[8] [2015] NSWSC 1416.
At [33] Johnson J said in Craigie:
“Mr Hickey, counsel for the Plaintiff, submitted that the Medical Appeal Panel had missed a critical aspect of the Plaintiff’s argument, namely that, as Cullen requires, before the Approved Medical Specialist could proceed to assess the extent of any deduction for a pre-existing condition, it was necessary to determine that such condition relevantly pre-existed at the commencement of the Plaintiff’s employment in 2007. It was submitted that neither the Approved Medical Specialist nor the Medical Appeal Panel made any such critical finding and thus had committed the same type of error as found in Cullen.”
At [36] Johnson J said:
“In Cullen, Beech-Jones J (as his Honour then was) said (at [46]) that to establish a pre-existing condition for the purpose of s.323(1) WIM Act, there must, at a ‘relevant date’, be an actual condition, although it may be asymptomatic. His Honour observed in Cullen (at [56]) that the Medical Appeal Panel had not identified ‘any point in time much less prior to his employment commencing when Mr Cullen may have first developed osteoarthritis albeit asymptomatic’”.
At [37] Johnson J said:
“Beech-Jones J identified the error in Cullen at [57]:
‘... the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a ‘constitutional pathology’ then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time)’”.
In Cullen, Beech-Jones J as he then was considered a situation where the worker had been employed by the same abattoir since 1978 until about 2000 when he began to experience pain in his hip.
A deduction pursuant to s 323 was made by the Approved Medical Specialist (AMS) and on appeal a Medical Appeal Panel confirmed the deduction and corrected a mathematical mistake made by the AMS, which resulted in Mr Cullen not being entitled to any compensation, as the direction resulted in a 10% WPI finding.
His Honour reviewed the relevant law and said at [51]:
“Mr Dodd submitted that the nature of the injury was one to which s 15 or s 16 applied in that it was one that involved, in the case of s 15, a ‘gradual process’ of onset of the disease or, in the case of s 16(1), consisted of the aggravation, acceleration, exacerbation or a deterioration. In both cases he submitted that gradual process or aggravation related to the entire period in which his client was employed by Woodbrae. He contended that it followed that, in order for s 323 to be applicable, it was necessary for there to be evidence capable of supporting a finding that as at the time his client commenced employment in 1978 he was subject to an existing injury, condition or abnormality. As stated, Mr Blount accepted that was the case but contended that there was such evidence.”
His Honour accordingly ordered the MAC to be set aside. He said:
“57. Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen’s employment. As noted, Mr Blount repeatedly asserted that there was evidence to support such a finding. However that contention travels nowhere as the MAP did not make such a finding. Instead the MAP concluded that once it was established that Mr Cullen had osteoarthritis that had a ‘constitutional pathology’ then it automatically followed that it was a pre-existing condition. In this case that approach was erroneous in law and constitutes an error of law on the face of the record (and that is the case irrespective of whether the condition had to pre-date the commencement of his employment or some later time).”
There is no evidence that Mr Hughes was suffering from any injury, condition, or abnormality that pre-existed the commencement of his employment in November 1988, when he was
28-years-old.For these reasons, the Appeal Panel has determined that the MAC issued on 18 September 2023 should be confirmed.
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