Naves- Gomez v The Legislature
[2021] NSWPICMP 35
•23 March 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Naves- Gomez v The Legislature [2021] NSWPICMP 35 |
| APPELLANT: | Santiago Naves- Gomez |
| RESPONDENT: | The Legislature |
| APPEAL PANEL: | Member Brett Batchelor Dr John Dixon-Hughes Dr Neil Berry |
| DATE OF DECISION: | 23 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal by worker on the grounds of assessment was made on the basis of incorrect criteria, and that the MAC contained a demonstrable error; the appellant worker claimed that the Medical Assessor (then an Approved Medical Specialist) was in error in making a one tenth deduction from an assessment of 15% WPI as a result of injury to the digestive system (bilateral hernias) and scarring (TEMSKI); the appellant accepted the 15% WPI assessed but submitted that the Medical Assessor made three demonstrable errors in finding that pre-existing conditions in the respiratory system (asthma, chronic obstructive airways disease and smoking) contributed towards impairment in the gastrointestinal tract, that a deduction of 10% was made for these pre-existing respiratory conditions and that the Medical Assessor had not provided reasons as to why the pre-existing conditions contributed towards impairment of the gastrointestinal system; Held- the Appeal Panel found that the pre-existing conditions suffered by the appellant worker contributed to the WPI sustained by him as a result of injury to the digestive system, but that the Medical Assessor had failed to provide reasons for the deduction of one tenth for pre-existing conditions pursuant to section 323 of the 1998 Act that he made from his assessment of 15% WPI; the Appeal Panel re-assessed the deduction to be made and found that there was no error in the one tenth deduction made by the Medical Assessor; MAC confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 10 December 2020 Santiago Naves-Gomez (the appellant/Mr Naves-Gomez) lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr John F W Garvey, an Approved Medical Specialist (now referred to as a Medical Assessor), who issued a Medical Assessment Certificate (MAC) on 26 November 2020.
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,
· 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 approximately 2011 the appellant felt pain and discomfort and became aware of hernias. In early 2017 he was lifting a safe and felt immediate pain in his groin. Mr Naves-Gomez underwent surgery to repair left and right sided inguinal hernias. In March 2018 the appellant was moving a recycling bin weighing 60-70 kg when he noticed acute pain in the left side of his groin. He consulted his doctor and was referred for radiological investigation. On 4 December 2018 the appellant was admitted to Royal Prince Alfred Hospital with a small bowel obstruction secondary to a recurrent right hernia. The hernia was surgically repaired by Dr Gallagher. Mr Naves-Gomez continues to experience moderate pain and discomfort in his groin.
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.
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 because neither the appellant nor the respondent requested re-examination by an Approved Medical Specialist who is a member of the Appeal Panel, and the Panel is of the opinion that there is sufficient evidence in the appeal papers on which to base its decision.
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. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In summary, the appellant submits that the MAC contains a demonstrable error. He asserts that there are three such errors, namely:
(a) the Medical Assessor has given an opinion that pre-existing conditions in the respiratory system have contributed to the impairment of the gastro-intestinal tract;
(b) the Medical Assessor has made a deduction of 10% pursuant to s 323 of the 1998 Act for pre-existing respiratory conditions, and
(c) the Medical Assessor has failed to provide reasons as to why the pre-existing conditions in the respiratory system have caused of contributed towards impairment of the gastrointestinal system.
The appellant submits that in [8.e.] and [8.g.], [sic, [8.f.]] of the MAC contain the first demonstrable error in that the Medical Assessor was requested to assess impairment resulting from injury to the gastrointestinal tract (bilateral hernias) and the skin in accordance with TEMSKI (table for the assessment of minor skin impairment at Table 14.1 of the Guides). The appellant fails to comprehend how the Medical Assessor could conclude that any condition affecting the respiratory system could have any bearing on the assessment. This submission is made in the context of the wording of s 323 of the 1998 Act, the Guidelines and the decisions of Cole v Wenaline Pty Limited[1] and Vannini v Worldwide Demolitions Pty Ltd[2].
[1] [2010] NSWSC 78 (Cole).
[2] [2018] NSWCA 324 (Vannini).
The appellant submits that the abovementioned error infects the reasoning of the Medical Assessor at [11] of the MAC, which is the second demonstrable error. The deduction of 10% is at odds with the available evidence as required by the Guidelines. In accordance with Vannini, this is submitted to be a demonstrable error. The appellant further submits that if the Appeal Panel were to accept that the pre-existing conditions in the respiratory system could indeed affect an assessment of impairment to the gastrointestinal system, the Medical Assessor has failed in his task to provide any reasoning to this effect. That constitutes the third demonstrable error. The appellant relies upon the reasoning in El Masri v Woolworths Ltd[3] in support of its submission that the Medical Assessor has a statutory obligation to provide reasons to s 325 of the 1998 Act.
[3] [2014] NSWSC 1344 (El Masri).
The appellant submits that the failure to give reasons, in circumstances where the conditions of smoking, asthma and chronic obstructive airways disease (COPD) were asserted to contribute to the impairment of the gastrointestinal tract are not obvious, offends the requirement of the Medical Assessor to show his path or reasoning and is a demonstrable error.
The appellant requests the Appeal Panel to revoke the MAC and in its place apply no deduction pursuant to s 323 of the 1998 Act to the assessment of impairment of the Medical Assessor of 15% whole person impairment (WPI), which is accepted.
Respondent
In reply, the respondent submits that the appellant’s reliance on s 327(3)(d) of the 1998 Act is assumed, although no reference to the relevant legislation appears in his submissions. The respondent notes that the ‘demonstrable error’ of the Medical Assessor asserted by the appellant is that he failed to provide reasons as to why the pre-existing conditions in the respiratory system caused or contributed towards the impairment in the gastrointestinal system.
The respondent draws attention to [8.a.] of the MAC[4], noting that the body part in respect of which the worker is claiming is within his field of expertise. At [8.e.] the respondent notes that the Medical Assessor specifies one tenth is deducted from the whole person impairment assessment for cigarette smoking, asthma and COPD, and at [8.d.], (sic, [8.f.]), the respiratory system, (asthma, COPD and smoking 5-10 cigarettes/day), is cited as the body part/system as being affected by the previous injury, pre-existing condition or abnormality.
[4] Appeal Papers p 25.
The respondent submits that the Medical Assessor has clearly articulated reasons as to why there is to be a one tenth deduction, relying on his assessment of the appellant and his expertise as a general and diagnostic surgeon.
The respondent refers to the report of Dr Richard Crane, the independent medical examiner retained on behalf of the respondent, who examined Mr Naves-Gomez on 20 July 2020 and produced a report dated 28 July 2020[5]. In that report Dr Crane clearly articulates at [25(g)] the presence of smoking and a chronic cough as factors that would have more of an effect on the occurrence of the appellant’s hernias than his work activities. The respondent submits that therefore two medical experts in the subject field have provided opinions which agree that the respiratory system does have a bearing on the development on inguinal hernias, contrary to the assertions of the appellant.
[5] Appeal Papers p 445.
The respondent notes the decision of Workers Compensation Nominal Insurer v Arcaba[6] in which the Supreme Court found that the Approved Medical Specialist was not obliged to provide an explanation as to why he reached a different view to that contained in the material that was before him, and that there was no error based on the failure to do same.
[6] [2016] NSWSC 1647.
The respondent submits that the appeal on the basis of demonstrable error should fail as there is no such error on the face of the MAC, and the appellant’s submission that the Medical Assessor did not provide reasons is simply incorrect.
The respondent submits that either the appeal should not get beyond the gatekeeper (presumably referring the role of the Registrar referred to in s 327(4) of the 1998 Act), or alternatively if that is not the case, that a greater than one tenth deduction should be applied pursuant to s 323 of the 1998 Act in accordance with the findings of Dr Crane in his report dated 28 July 2020.
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. Once error is made out, the Panel may “review” the MAC. (see Siddik v Workcover Authority of NSW[7] and NSW Police Force v Registrar[8])
[7] [2008] NSWCA 116.
[8] [2013] NSWCA 1792.
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 three demonstrable errors asserted by the appellant in [12] above all are in respect of the deduction of one tenth from the degree of WPI assessed by the Medical Assessor of 15% pursuant to s 323 of the 1998 Act. The appellant accepts the 15% assessment, but submits that no reasons have been given by the Medical Assessor for the deduction, and questions how a pre-existing condition in the respiratory system can have contributed to the impairment of the gastrointestinal tract.
Dr Crane in his report dated 28 July 2020, referred to above at [20], states that presence of smoking and a chronic cough as factors that would have more of an effect on the occurrence of the appellant’s hernias than his work activities. The medical members of the Appeal Panel accept that asthma, smoking and a chronic cough are factors which must be considered in the development of hernias. Anything that significantly raises intra-abdominal pressure is likely to precipitate the development of hernias particularly in a person predisposed. A single severe bout of coughing can cause a hernia in a predisposed person.
Dr Anthony Greenberg, the independent medical examiner retained on behalf of the appellant, produced a report dated 11 March 2020 following his examination of Mr Naves-Gomez on 10 March 2020[9]. In that report the doctor noted a number of risk factors in respect of the aetiology inguinal hernia “…such as older age, male sex, chronic cough, smoking, chronic constipation, abdominal wall injury, family history and a history of prior hernia repair (including childhood).”[10]
[9] Appeal Papers p 413.
[10] Appeal Papers p 418.
The Appeal Panel notes that there was evidence of Mr Naves-Gomez suffering from suspected asthma and COPD (also known as COAD). The appellant also suffered bilateral hernias that were repaired in December 2017. On 5 December 2018 the appellant underwent an urgent operation for small bowel obstruction, associated with recurrent inguinal hernia. The right sided hernia was repaired, following relief of the obstruction.[11]
[11] Appeal Papers p 302.
The appellant has been a long term smoker, up until at least the time of the December 2018 surgery, apart from very short periods when attempts to cease smoking were initiated by treating doctors. As part of the Appeal Papers are documents attached the Application to Resolve a Dispute[12], which include the clinical notes of the appellant’s general practitioner, Dr C Costa.
[12] Appeal Papers p 38.
In those notes a doctor records on 8 March 1994 “script valium denies EtOH still smoking heavily ? nicotine patch”[13]. There is also an entry dated 25 July 1991[14] recording bilateral hernias and a referral to Dr Collette (“inguinal hernia x 2 – Dr Collette”). Earlier, on 29 July 1987[15], the local doctor records recurrence of right sided hernia (“® groin pain (over old hernia site) – pain referred to testicle…O/E …hernia (recurrent) ® side ? direct”).
[13] Appeal Papers p 410.
[14] Appeal Papers p 408.
[15] Appeal Papers p 412.
The “Past History” in Dr Costa’s referral to Dr Hollingshead dated 18 April 2017 includes reference to bilateral inguinal hernia and COAD[16]. In response to that referral the appellant appears to have seen Dr Guillermo Becerril on 3 May 2017[17] who carried out the surgery on 8 December 2012, a laparoscopic left inguinal hernia repair, attempted laparoscopic right hernia, laparotomy and partial repair of adhesions + primary repair[18]. This was after Mr Naves-Gomez had been cleared by his cardiologist, Associate Professor Andy Wong, to undergo the surgery. On 10 November 2017 Dr Wong recorded other medical problems of the appellant as being a current smoker - 20 cigarettes per day and COPD[19].
[16] Appeal Papers p 280.
[17] Appeal Papers p 294.
[18] Appeal Papers p 323.
[19] Appeal Papers p 298.
The Appeal Panel notes that such entries, while not directly relevant to the issue in question in this appeal, provide evidence of a predisposition to hernia over many years with smoking.
Dr Green recorded the appellant as smoking 10 cigarettes a day, and Dr Crane recorded that he had been a moderately heavy smoker since the age of 25 or 26 and had a chronic cough.
The Appeal Panel accepts that the recurrent episodes of chronic coughing, over many years, as a result of chronic obstructive airways disease contributed to the WPI as assessed by the Medical Assessor following the hernia suffered on 2 March 2017, the date of injury accepted in this matter. This contribution is as a result of weakening of the musculature of the abdominal wall, particularly the inguinal regions.
The Appeal Panel accepts that the Medical Assessor has not provided an explanation as to how the respiratory system could affect the gastrointestinal system, and this constitutes a demonstrable error in accordance with the finding of the Supreme Court in El Masri. This finding is notwithstanding the references by the Medical Assessor to cigarette smoking, asthma and COPD at [8.e. and f.] and [10.b.] of the MAC.
The Appeal Panel is therefore obliged to reassess the quantum of the deduction that should be made from the agreed level of WPI of 15% assessed by the Medical Assessor. The Panel can find no error in the quantum of the deduction made by the Medical Assessor.
Section 323(2) of the 1998 Act and note thereto provides:
“(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.
Note : So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).”
In Vannini the Court of Appeal addressed the issue of the manner in which an Appeal Panel deals with s 323 deduction as follows:
“90. An Appeal Panel performing the function of administrative review by way of a rehearing is confronted with similar issues when correcting error, particularly when the ground of appeal is demonstrable error contained in the certificate of the medical specialist. It is not necessary to consider how the reasoning of the approved medical specialist may be shown to wrong in every respect. In this case, the Panel was considering the reasoning of the medical specialist on the question of causation arising under s 323. The relevant issue was whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality? If so, what was that proportion?
91. The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly the reasoning and finding of the medical specialist attracts the correctness standard of review by a Panel.
92. The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the ‘proportion’ of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.” (emphasis in original)
The “similar issues when correcting error” referred to by the Court in [90] of Vannini was a reference to the case of an appeal by way of rehearing before an appellate court.
There is an absence of medical evidence to quantify the extent of a deduction under s 323, but as noted above, there is quite extensive evidence of the pre-existing condition from which Mr Naves-Gomez suffers which, in the opinion of the Panel, quite clearly requires a deduction from the agreed level of impairment assessed by the Medical Assessor. In this regard the medical members of the Appeal Panel are exercising “…their medical judgement, knowledge and experience” as noted by the Court at [38] in Cole. The medical members of the Appeal Panel in this case find that, having regard to the evidence, the Medical Assessor was correct in making a one tenth deduction from the 15% WPI assessed by him for cigarette smoking, asthma and COPD.
For these reasons, the Appeal Panel has determined that the MAC issued on 26 November 2020 should be confirmed.
Brett Batchelor
Member
Dr John Dixon-Hughes
Medical Assessor
Dr Neil Berry
Medical Assessor
23 March 2021
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