Morados v Cordina Chicken Farms Pty Ltd
[2021] NSWPIC 203
•24 June 2021
| DECISION OF PRESIDENT’S DELEGATE | |
| CITATION: | Morados v Cordina Chicken Farms Pty Ltd [2021] NSWPIC 203 |
| APPELLANT: | Rose Morados |
| RESPONDENT: | Cordina Chicken Farms Pty Ltd |
| PRESIDENT’S DELEGATE: | Parnel McAdam |
| DATE OF DECISION: | 24 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appellant lodged an application to appeal against decision of Medical Assessor on the grounds that the assessment was made on the basis of incorrect criteria and the MAC contained a demonstrable error; appellant’s challenge to the assessment limited solely to the application of section 323 of the 1998 Act; appellant argued the Medical Assessor did not properly apply the statute and made a deduction when he should not have; appellant also submitted that the Medical Assessor did not provide reasons for the deduction; Held- ground of appeal as specified in section 327(3) is not made out; the appeal is not to proceed. |
DECISION
The Medical Assessment Certificate (MAC) of Dr Mohammed Assem, a Medical Assessor, was issued on 13 April 2021.
On 11 May 2021, the appellant lodged an Application to Appeal Against Decision of Medical Assessor. The appellant appeals against the MAC on the following grounds:
(a)the assessment was made on the basis of incorrect criteria, and
(b)the MAC contains a demonstrable error pursuant to s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
On 21 May 2021 the respondent lodged a Notice of Opposition to Appeal Against a Decision of Medical Assessor.
Section 327(4) of the 1998 Act provides that an appeal is not to proceed unless the President is satisfied that, on the face of the application and the submissions made, at least one of the grounds of appeal as specified in s 327(3) of the 1998 Act has been made out. This involves an assessment by the President’s delegate of whether an appeal ground is arguable, or capable of being made out, on the face of the application and the parties’ submissions.[1]
[1] Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324, [83]; Ballas v Department of Education (State of NSW) [2020] NSWCA 86 (Ballas), [68]-[72].
On the face of the application and submissions made, I am not satisfied that it is arguable that a ground of appeal as specified in section 327(3) is made out.
Issues on appeal
The appellant’s challenge to the assessment is limited solely to the Medical Assessor’s application of section 323 of the 1998 Act.
It is noted that even if the appeal were successful, the resulting change in impairment would be an increase of 1%, and would not exceed the threshold contained in section 314 of the 1998 Act.
The role of the President
My role and powers in making this decision are exercised under section 327 of the 1998 Act. They have been described as those of a “gatekeeper”: Marina Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 (Marina Pitsonis). In Kolundzic v Quickflex Constructions Pty Ltd [2014] NSWSC 1523 (Kolundzic), Campbell J at [51] provided the following summary of the role of the Registrar (now functions exercised by the President):
“As has been said, the Registrar performs a gatekeeper function: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [8] and [82]. His or her power is to determine whether on the face of the application and any submissions made ‘at least one of the grounds of appeal specified in subsection (3) has been made out’. This is a precondition to an appeal involving an evaluative decision that at least one ground, on its face, is ‘valid and apparently credible’: Vegan at [8].”
In making this decision, I am mindful of the Court’s reasoning in Ballas, in which the test in section 327 was interpreted to require the President to be satisfied that it is arguable that a ground of appeal is made out. For the reasons that follow, it is my determination that the arguments put forth by the appellant are not arguable, rather than the arguments are incorrect.
Incorrect criteria
The appellant’s submissions are divided into the “incorrect criteria” and “demonstrable error” grounds, although in both cases, the appellant broadly challenges the Medical Assessor’s application of section 323 of the 1998 Act. The Medical Assessor made a deduction of 1/10th from the assessed impairment in the cervical spine. The Medical Assessor identified a number of factors contributing to this conclusion:
(a)an incident of cervical radiculopathy, identified in the clinical notes as occurring on 23 July 2007, and
(b)the MRI report of the appellant’s cervical spine dated 16 October 2018, which demonstrated degenerative changes.
The Medical Assessor provided the following explanation for his conclusion:
“She appears to have suffered previous neck complaints in around 2007 with the radiological imaging showed pre-existing degenerative pathology. Nevertheless, she was capable of working in a regular and reliable manner for approximately five years prior to the subject injury. I considered the pre-existing pathology had contributed to her current impairment. As it was difficult or costly to determine, a one-tenth deduction3 (sic) was applied giving 6% whole person impairment.”
The appellant submits that the Medical Assessor did not properly apply the statute and the Guidelines, and made a deduction when he should not have. The appellant refers to Cole v Wenaline Pty Ltd [2010] NSWSC 78 (Cole), submitting that the Medical Assessor assumed that he needed to make a deduction.
I do not accept that this submission is arguable. Nowhere in the MAC does the Medical Assessor indicate that he assumed he needed to make a deduction. On the contrary, the Medical Assessor sets out the factors he considered in reaching his conclusion (which are helpfully summarised by the appellant), and then explained that he considered that those factors contributed to the current impairment.
The circumstances that existed in Cole are not entirely apposite to those that exist here, and the Medical Assessor’s reasons for making a deduction, in my view, do not constitute a hypothesis. In Cole, the Appeal Panel proceeded on the basis that hypothetically, had the worker been assessed prior to the work injury, he would have been suffering from 10% permanent impairment. The existence of Cole as precedent does not mean that every circumstance where a deduction is made proceeds on the basis of hypothesis.
In the present case, the Medical Assessor has not proceeded on such a basis. He has not referred to a hypothesis or assumption. He has not concluded that once an injury has occurred, or an identifiable condition exists, irrespective of outcome it contributes to impairment.
What he has done is analysed the evidence provided by the parties, including the clinical notes and radiological evidence, and reached a conclusion based on that evidence. That conclusion is different to that reached by the appellant’s independent medical expert, which the Medical Assessor discussed on page 6 of the MAC.
The appellant submits that the Medical Assessor has not indicated why the impairment was contributed to by the pre-existing factors. I have quoted the Medical Assessor’s reasoning relating to section 323 above. He has explained why the current degree of impairment has been contributed to by pre-existing factors:
(a)the existence of the clinical notes in 2007, and
(b)the radiology from 2018.
Together these provide context for the deduction made by the Medical Assessor and explain why he chose to make a deduction. The extent of that deduction is a separate consideration, one which the Medical Assessor applied section 323(2) of the 1998 Act to make his determination of the extent of the deduction. These are separate steps in the application of section 323 of the 1998 Act. I am not satisfied, to the standard of a gatekeeper, that is arguable that this submission constitutes a ground of appeal.
The appellant next submits that the Medical Assessor did not even indicate that the pre-existing pathology caused or contributed to impairment in the cervical spine. This is factually incorrect and cannot make out an arguable ground of appeal. The Medical Assessor’s reasons specifically state that he “considered the pre-existing pathology had contributed to her current impairment”.
The appellant submits that if the Medical Assessor had regard to the evidence, it would have been apparent that a deduction should not have been made because there was no evidence that indicated that the pre-existing condition contributed to the impairment of the appellant’s cervical spine.
Contrary to this submission, the Medical Assessor did point to such evidence, namely the clinical notes of earlier radicular symptoms and the radiological evidence. This submission is inconsistent with the evidence provided and the reasons contained in the MAC. This “no evidence” argument cannot constitute an arguable ground of appeal as the evidence existed. The interpretation of that evidence was a matter for the clinical judgement of the Medical Assessor. In his clinical judgement, the pre-existing condition identified clinically contributed to the current degree of permanent impairment, which is expressed in his reasons.
The fact that the evidence relied on by the Medical Assessor did not translate to a favourable outcome for the appellant is a different case to that put forward in the appellant’s submissions, i.e. that there was no evidence.
Demonstrable error
The appellant makes a number of submissions concerning this ground of appeal.
Firstly, the appellant submits that the Medical Assessor has not provided any reasons for his determination that a 1/10th deduction should be made. The appellant refers briefly to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (Kocak). Kocak was discussed in depth, in the context of the role of an Approved Medical Specialist (the equivalent of a Medical Assessor under the former Workers Compensation Commission) by Cambell J in State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346, where he states:
“My reasons for concluding that the Approved Medical Specialist did not fall into the error of law in this regard are slightly different to those expressed by the Panel. In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, the High Court of Australia dealt with the nature of the jurisdiction exercised by a medical panel under cognate Victorian legislation. The legislation is not entirely the same but it is broadly similar in purpose. Allowing for some differences, the High Court said at page 498 [47]:
“The material supplied to a medical panel may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on the medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the functions of the panel as being either to decide a dispute or to make up its mind by reference to completing contentions or competing medical opinions. The function of a medical panel is neither arbitral or 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 perform and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
Not all of this, as I have said, is apposite in the context of the New South Wales legislation. In particular it is obvious that approved medical specialists are required to decide disputes referred to them by the process of medical assessment. Even so, it is not necessary that approved medical specialists should sit as decision makers choosing between the competing medical opinions put forward by the parties. Essentially, the function is the same as that described by the High Court in Wingfoot Australia. That is to say, their function is in every case to form and give his or her own opinion on the medical question referred by applying his or her own medical experience and his or her own medical expertise. It is sufficient, as their Honours pointed out at [55], that:
“The statement of reasons... explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law."”
I do not accept that it is arguable that the Medical Assessor has failed to comply with his obligation to provide reasons. The Medical Assessor’s path of reasons, as required by Kocak and as explained in Kaur, requires the reasons to follow a logical path. The Medical Assessor is an administrative decision maker, providing his own opinion on the medical dispute referred to him based on his experience and medical expertise. The reasons are sufficient to determine whether the opinion involves an error, as they:
(a)set out the facts on which the opinion is based, namely the radicular complaints in 2007 and the radiological evidence;
(b)comply with the statutory requirement in section 323, by identifying a pre-existing condition;
(c)apply the proper statutory test, by identifying that the pre-existing condition contributes to the current degree of permanent impairment, and
(d)calculate the degree of permanent impairment, by applying the “default” deduction in section 323(2) of the 1998 Act.
In my view the appellant’s submissions are trying to make the case for an error that simply is not arguable.
The appellant goes on to refer to Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills [2018] NSWSC 1320 (Wills). Again, the context of this decision is substantially different to the case currently appealed against. In Wills, the plaintiff employer alleged (and it was accepted by the Court) that the Approved Medical Specialist had erred in providing only a 1/10th deduction, arguing that it should have been higher. In the present case, the appellant is arguing that no deduction as applicable (a different step in the process to determining the extent of the deduction).
On the facts of the present case, and the arguments put forward by the appellant, Wills can be distinguished. The Medical Assessor has provided reasons as to why he has made a deduction. It is not the appellant’s case that the extent of the deduction should have been smaller (noting that any deduction less than 1/10th appears to be not available under the statute, and in the present case, would have been pointless, as it would not have resulted in any difference in outcome).
Once the Medical Assessor determined that a deduction as appropriate, there was no other possible outcome that could have been favourable to the worker. The only other possible outcome was the Medical Assessor making a deduction of greater than 1/10th. He determined that the extent of that deduction as difficult or costly to determine, a finding that was open to him.
It is not arguable, to the standard of a gatekeeper, that this ground of appeal is made out.
Conclusion
It is not arguable, to the standard of a gatekeeper, based on the appellant’s submissions and on the face of the MAC and the referral document, that a ground of appeal as specified in section 327(3) is made out. Accordingly, the appeal is not to proceed.
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