Munck v Coles Supermarkets Australia Pty Ltd
[2022] NSWPICMP 11
•18 January 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Munck v Coles Supermarkets Australia Pty Ltd [2022] NSWPICMP 11 |
| APPELLANT: | Tania Munck |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| APPEAL PANEL: | Paul Sweeney Dr Robin Fitzsimons Dr Michael Davies |
| DATE OF DECISION: | 18 January 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker appeals from a certification by Medical Assessor that she did not suffer whole person impairment as a result of a closed head injury on grounds of deterioration and fresh evidence namely audio-vestibular testing; Held- panel determines that there is no evidence of deterioration; audio-vestibular testing held to be fresh evidence but not capable of altering the outcome of the assessment in view of the worker’s clinical history; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 11 October 2021, Tania Munck (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr John O’Neill, a Medical Assessor (MA, formerly an Approved Medical Specialist), who issued a Medical Assessment Certificate (MAC) on 29 March 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· deterioration of her condition that results in an increase in the degree of permanent impairment, and
· availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against).
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 grounds 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
The appellant was employed as a permanent part-time shelf filler and packer at the premises of Coles Supermarkets Australia Pty Ltd (the respondent) at Cowra. On 7 May 2015, she lost balance on a slippery floor and fell forward striking her head.
The appellant says that as she lay on the ground following the fall she experienced a sharp throbbing pain in her left eye. The throbbing pain caused a severe headache and she “felt extremely dizzy and nauseous”. She states:
“I had great difficulty getting up off the floor and I felt like everything around me was spinning”.
The appellant was transported to the Cowra Hospital where she was treated for concussion. She was off work for three days. She saw Dr Chan, a general practitioner, who advised her she could return to work. She returned to work in mid-May 2015 “due to financial necessity”.
In August 2015, the appellant consulted Dr Greenwell who merely advised her to take Panadol and that her symptoms would resolve. She felt that Dr Greenwell did not understand the “severity of my pain”. She says that in 2016, she experienced increasing episodes of dizziness.
The appellant says that in mid-2016 her neck and head pain gradually worsened. She states:
“The pain alternated between and throbbing and sharp sensation. It felt like I had an ice-pick stabbing into my head. At work I became increasingly nauseated with the headaches and at times I would vomit. I also suffered tingling and pins and needles in my fingers.”
The appellant states that throughout 2019 the pain that emanated from her neck continued to worsen and she experienced a restricted range of movement of her neck. She states that the pain and stiffness in her neck made completing daily tasks at work “challenging”.
In December 2019, the appellant consulted Dr Peter Killey at the Kelso Medical Centre. She was referred for massage therapy and for an MRI of her neck. Dr Killey told her that she had cervicogenic headaches and prescribed pain relief. This did not alleviate her headaches. In 2019, the appellant lost considerable time from work. She said that she had become “increasingly sensitive to light and noise”. She said that she felt overwhelmed and “had to use sick leave in order to cope”.
The appellant stopped working on 31 January 2020. In that month she was referred to Dr Emma Blackwood, a neurologist of Orange. Dr Blackwood suggested that the appellant was suffering from post-traumatic migraine and post-concussion syndrome. Dr Blackwood prescribed sandomigran and propranolol but this did not alleviate the appellant’s pain. She states that she did not find Dr Blackwood to be sympathetic.
The appellant says that she continues to have severe headaches and dizzy spells. She has also “started having some memory difficulties”. She finds it particularly difficult to look left and right. She says that she has to “twist my whole body to protect my neck” and turning her neck or sitting for periods aggravates her pain. The appellant says that any “sort of physical movement” will aggravate her neck pain. She is unable to perform many domestic duties and care for her husband who has dermatitis.
In 2020, the appellant’s solicitor referred her to Dr Dudley O’Sullivan, a neurologist, and Dr Sikander Khan, a general surgeon. By a report, dated 10 August 2020, Dr O’Sullivan diagnosed the appellant with post-traumatic and vestibular migraine. He thought that as the symptoms had persisted for more than five years they would continue for a “significant period of time”, although there may be some improvement with an improved treatment regimen.
Following his examination, Dr O’Sullivan assessed the appellant as having 15% whole person impairment (WPI) on the basis of an injury to the vestibulocochlear nerve. He stated that the only way to establish whether or not this was present was to perform vestibular diagnostic tests but he did not “believe they are necessary”.
By his report, Dr Khan expressed the opinion that the appellant suffered a soft tissue injury to her neck and an aggravation of asymptomatic pre-existing degenerative changes in the fall at work in 2015. He assessed WPI as 7% based on a finding of DRE1 and an allowance of 2% for interference with the activities of daily living (ADL).
Dr John Bosanquet, an orthopaedic surgeon, saw the appellant at the request of the respondent on 27 March 2020. He expressed the opinion that the appellant’s condition was unrelated to the injury. He said this:
“The diagnosis in 2015 was correct, in that she did have a head injury. It is my opinion that this has not led to any long-term sequelae. As the radiological investigations of her cervical spine, including CT and MRI scan are basically normal and consistent with her age, I do not think the diagnosis of chronic cervicogenic headache is correct.”
He noted that the symptoms in the appellant’s head and neck developed some time after her injury; that she had a full range of movement in the cervical spine on examination; and that the radiological investigations were in no way abnormal.
Dr Mellick, a neurologist, saw the appellant at the request of the respondent on 19 January 2021 and provided a report of 2 February 2021. Dr Mellick accepted that the appellant had permanent impairment of her neck as a consequence of the injury. He also accepted that the appellant had headaches which had “features of migraine”. He stated that he was unable to establish that the symptoms described by the appellant were due to an 8th nerve lesion. He stated:
"There are no signs reported by Dr Sullivan or myself which enable that localisation and the MRI scan of the brain revealed no evidence of post-traumatic pathology that might explain an isolated 8th nerve lesion”.
He made no determination of permanent impairment in respect of the complaints of migraine but assessed 7% WPI in respect of the appellant’s cervical spine.
The difference of opinion as to the degree of WPI between Dr Khan and Dr O’Sullivan, on the one hand, and Dr Bosanquet and Dr Mellick on the other hand, gave rise to a medical dispute as that term is used in s 319 of the 1998 Act, the Registrar of the then Workers Compensation Commission referred the matter to a MA, Dr John O’Neill. Dr O’Neill assessed permanent impairment of the cervical spine at 7%. He made no assessment of WPI in respect of vestibular migraine. It is from that assessment that the appellant brings this appeal.
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.
As a result of that preliminary review it determined that it was unnecessary for the worker to undergo a further medical examination because the evidence did not establish error and the fresh evidence relied on by the appellant was unlikely to alter the outcome of the assessment. It is impermissible to carry out a medical examination merely for the purposes of establishing error.
The panel also noted that repeated clinical examinations over the years had not provided any clear evidence of neurological dysfunction and it was highly improbable that a further examination or the recording of additional history would illuminate the issues of diagnosis and causation.
FRESH EVIDENCE
Section 328(3) of the 1998 Act provides that evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to a medical assessment appealed against may not be given on an appeal by a party unless the evidence was not available to the party before the medical assessment and could not reasonably have been obtained by the party before that medical assessment.
The appellant seeks to admit the following evidence:
(a) a report of Dr Emma Blackwood, neurologist, dated 13 July 2021, and
(b) reports of Dr Dudley O’Sullivan dated 20 April and 6 September 2021.
The appellant submits that the reports of Drs Blackwood and O’Sullivan were not available at the time the MA examined the appellant. Curiously, she submitted:
“These medical reports could not have been reasonably available at the time of the MAC, as there was no indication that the AMS would disregard the condition of vestibular function without testing being carried out”.
The respondent objected to the introduction of fresh evidence. It argued that the evidence could have been obtained by the appellant at any stage prior to the commencement of proceedings. It also submitted that “it cannot reasonably be said that this new evidence would alter the outcome in any event”.
The respondent relied on the reasoning of Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7. Specifically, it argued that the vestibular diagnostic testing in respect of vestibular nerve dysfunction could have been undertaken at any time after the appellant came under the care of Dr Blackwood, her treating neurologist, and before she made a claim for permanent impairment compensation.
Certainly, Dr O’Sullivan raised the possibility of carrying out vestibular diagnostic tests in his report of 10 August 2020 but expressed the opinion that he did “not believe they are necessary”. Obviously, the vestibular diagnostic tests were not available to the appellant or her solicitor at the time of Dr O’Neill’s assessment as they had not been carried out.
The issue for determination is whether the vestibular diagnostic testing could “reasonably have been obtained by the appellant before” that medical assessment. While Dr O’Sullivan had stated in the report on which the claim for permanent impairment was based that the vestibular diagnostic testing might be relevant, he also stated that he did not think that such testing was necessary. Later, on20 April 2021, he opined that the only way to address the differences of opinion and to determine whether or not there was vestibular dysfunction would be by caloric and other vestibular function tests, preferably at Royal Prince Alfred Hospital (RPAH). There is nothing in Dr Blackwood’s evidence prior to Dr O’Neill’s medical assessment to suggest that she had recommended that the appellant undergo these tests.
In the absence of any medical evidence suggesting that the tests were necessary for the purposes of treatment or important from the perspective of her permanent impairment claim, it is difficult to criticise the appellant or her solicitor for not obtaining or adducing the evidence before the medical assessment. Their preparation of the claim was in accordance with the medical advice available.
The respondent submits that a “forensic” decision was made to proceed to an assessment of permanent impairment without testing. However, in the absence of evidence suggesting that the vestibular testing was of importance, there was no realistic choice available to the appellant. It would be otherwise if the vestibular testing was recommended and the appellant’s solicitors lodged an application for medical assessment disregarding that advice. In those circumstances, the panel concludes that the vestibular diagnostic testing could not reasonably have been obtained by the appellant prior to the assessment.
The panel will address the issue of whether the further reports of Dr Blackwood and Dr O’Sullivan are likely to alter the outcome of the MAC below after reconsidering the findings of the MA.
Evidence
The panel has before it all the documents which were sent to the MA for the original medical assessment.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel. Other than an assertion that the further reports of Drs Blackwood and O’Sullivan should be admitted as fresh evidence the appellant’s submissions relevant to the issue before the appeal panel are quite brief. She submits that there has been a deterioration of her condition since the medical assessment “as a result of an increase in the WPI as a result of testing that was not available at the time the MAC was issued”. It is difficult to see how that is correct as Dr O’Sullivan assessed the appellant as suffering 15% WPI by reason of injury to the 8th cranial nerve both before and after the assessment.
The appellant’s submissions also raised the issue of whether the matter should be reconsidered by the original MA, Dr O’Neill pursuant to s 327(6) of the 1998 Act. While the submission may have some merit, it is not a course of action which is open to the panel. The submissions also canvass the question of reconsideration under s 329(1A) of the 1998 Act. Again, the powers of the panel do not extend to permit a consideration of this issue. They are powers exercisable by the President, Registrar or members of the Commission
The respondent submitted that the fresh evidence from Dr O’Sullivan and Dr Blackwood did not demonstrate any deterioration in the appellant’s condition since the date of the MAC. Accordingly, the appellant’s case could not succeed on the deterioration ground.
The respondent also addressed the issue of deterioration by reference to the reasoning of Handley AJA in the Court of Appeal in Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission [2007] NSWCA 149 (Riverina Wines). It submitted that there was no evidence of any such deterioration in this case.
The respondent then argued that the vestibular testing performed by Dr Blackwood and reviewed by Dr O’Sullivan was “far from conclusive”. Both doctors had expressed the opinion that the tests were consistent with vestibular dysfunction. The respondent argued that this was not a “definitive opinion”. It noted that Dr O’Neill in his assessment found “no objective evidence of disequilibrium” and did not indicate that testing might confirm or undermine his opinion. The respondent noted that none of the doctors had been able to establish objective evidence of disequilibrium on their examinations.
The respondent also submitted that by this application the appellant made a “new claim”. It refers to the principles stated by Roche DP in Woolworths Ltd v Stafford [2015] NSWWCCPD 36. The “new claim” was in breach of s 66(1A) of the Workers Compensation Act 1987 (1987 Act) which provides that only one claim can be made for permanent impairment compensation.
Jurisdiction
The panel determines that it has jurisdiction to determine the appeal referred to it by the delegate of the President. There is no suggestion in the legislation or the caselaw that the amendments to the regime of permanent impairment compensation introduced into the 1987 Act by the Workers Compensation Legislation Act 2012 were intended to limit the rights of appeal contained in s 327 of the 1998 Act.
While the panel believes that it is unlikely that the exercise of a statutory right to appeal on grounds specifically provided by s 327(a) and (b) can constitute a new claim, it is not within the panel’s jurisdiction to canvass or determine such an issue. If the provisions of the 1987 Act referred to by the respondent preclude the appellant from bringing these proceedings, that is a liability issue for determination by a member of the Commission.
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
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 Siddik v WorkCover Authority of NSW [2008] NSWCA 116. 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. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014)
Plainly, the appellant cannot succeed on an appeal based upon s 327(3) namely a deterioration of her condition that results in an increase in the degree of permanent impairment. There is no evidence of any deterioration in the worker’s condition resulting in increased permanent impairment between the time of the medical assessment and the lodging of the appeal. There is no further evidence from the appellant suggesting deterioration. Dr O’Sullivan, upon whose reports the appellant’s claim is based, has not suggested that there has been either a deterioration of her condition or an increase in the degree of permanent impairment.
In order to consider whether the vestibular testing carried out by Dr Blackwood and the further reports of Dr O’Sullivan should be admitted and, if so, whether they are likely to alter the outcome of the assessment, it is necessary to consider the way in which Dr O’Neill arrived at his certification in respect of the vestibulocochlear nerve.
On examination of the appellant, Dr O’Neill was unable to find any clinical evidence of disequilibrium. With respect, the MA’s examination was similar to those of the other medical practitioners who had examined the appellant. The MA’s summary of injuries and diagnoses is as follows:
“Mrs Munck suffered a mild closed head/facial injury in the fall at work on 7 May 2015.
There were some initial headaches but these appeared to settle and Mrs Munck was able to return to work 4 days after the fall.
I could find no further reference to symptoms possibly arising from the fall until a GP consultation on 16 September 2005 when there were pains in the back, right neck pain and dizziness with neck movements. Hallpike’s was negative, the situation was improving by 23 September 2015.
I could then find no further GP records pertaining to headache or other possible accident-related symptoms until the consultation on 5 November 2018 when Dr Greenwell (the usual GP) noted there were “headaches with pain going up the back of the neck, tension headaches?”.
The situation has certainly evolved from that time so that Mrs Munck now experiences daily headaches, a constant feeling of dizziness and other non-specific neurological symptoms. As a result of these she has been able to work since 31 January 2020.
I found no abnormalities on neurological examination apart from an asymmetry of neck movement. There were certainly no signs of disequilibrium. It is my view that Mrs Munck has tension-type headaches, mechanical neck pain and other psychosomatic complaints including dizziness.”
The MA continued:
“I found no abnormalities on neurological examination apart from an asymmetry of neck movement. There were certainly no signs of disequilibrium.
It is my view that Mrs Munck has tension-type headaches, mechanical neck pain and other psychosomatic complaints including dizziness.”
I cannot relate the current symptoms to the work incident of 27 May 2015 but I have been asked to accept that the accident was deemed to cause disequilibrium and neck pain.”
Before reaching the conclusion that the appellant’s symptom complex did not relate to the subject injury, the MA carefully considered the progress notes of the appellant’s treating doctors at the Cowra Medical Centre between the time of the work injury and at the time her cessation of work in 2020. The MA recorded that after a consultation with Dr Chan on 11 May 2015, four days after the injury, there was no further complaint of headache to a doctor at the practice until 16 September 2015 when the appellant complained of pain in her shoulder blades, neck “for a few days” and back of the head “for a week” which Dr Gay diagnosed as “Traps tightness” and for which she prescribed anti-inflammatory medication.
Then, on 23 September 2015 the appellant complained to Dr Gay that she was still getting trapezius pain, headaches over her occipital area, and dizziness, which lasted for a few seconds and when moving her head quickly.
Given the history recorded by Dr Gay of symptoms “for a week”, it is difficult to relate these complaints to the injury. Thereafter, as the MA recorded, there are no further complaints of neck pain and headaches until 5 November 2018, more than three years after the injury. In the interval, the appellant consulted with doctors at the practice on many occasions. Relevantly, on 4 June 2018, Dr Greenwell recorded that the appellant:
“Feels very well”
On 27 June 2018, in the context of cholesterol and her family cardiac history, Dr Greenwell recorded that the appellant:
“Has an exercise bike she uses and she walks”.
On 5 November 2018, Dr Greenwell recorded that the appellant was having headaches “with pain going up back of the neck”. She diagnosed these as tension headaches.
As the MA recorded, the appellant’s symptom complex has “evolved” since that time. At his examination, the appellant complained of dizziness most of the time, a feeling of being off balance, a constant ringing in both ears, and intermittent blurring of vision. Again, it is difficult to relate these symptoms to the injury given the absence of recorded complaint over a long period following 7 May 2015. It is true that the appellant’s statement evidence suggests some continuity of symptomology but it not easy to reconcile that evidence with the medical record. The clinical notes of 4 June 2018 and 27 June 2018 and the absence of recorded complaint over a very long period are inconsistent with the existence or progression of a significant neurological condition during this period.
While the reports of Dr Blackwood and Dr O’Sullivan offer some support for a bilateral disorder of the vestibulocochlear nerves, it does not assist the appellant in demonstrating that the disorder, which may have many causes (for instance bilateral vestibular neuritis), results from the injury. The MA’s opinion that the appellant’s complaints did not result from the injury was based on a thorough assessment of her clinical record. No other medical practitioner in the case considered this history. The panel agrees with the MA’s conclusion.
It is difficult to relate the applicant’s symptomatology to the injury. Bearing in mind the long period between injury and assessment, the panel considered that where it is in conflict with the appellant’s evidence the clinical record should be preferred. Assuming the applicant suffered a vestibular injury at the time of her fall, it cannot explain her more recent symptom complex. It is unlikely that a neurological condition
In those circumstances, the panel concludes that the fresh evidence does not alter the outcome of the original assessment. It is probably only of theoretical interest whether or not the fresh evidence is admitted or rejected given that it cannot alter the outcome of the original assessment. In either case, the appeal fails. The appellant has not proven that her symptoms result from injury.
For these reasons, the appeal panel has determined that the MAC issued 29 March 2021 should be confirmed.
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