New Stand Shop Fitters Pty Ltd v Barber
[2024] NSWPICMP 330
•24 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | New Stand Shop Fitters Pty Ltd v Barber [2024] NSWPICMP 330 |
| APPELLANT: | New Stand Shop Fitters Pty Ltd |
| RESPONDENT: | David Thomas Barber |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Roger Pillemer |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 24 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against 15% whole person impairment (WPI); whether Medical Assessor (MA) erred in not differentiating the impact on activities of daily living between the cervical spine and left upper extremity injuries; whether MA erred in not making a section 323 deduction; Held – additional WPI available for ADL restrictions only as provided in guides; no relevant authority cited for suggestion that there be a differentiation; MA gave adequate reasons for not applying section 323; Vitaz v Westform NSW Pty Ltd and Elcheikh v Diamond Formwork (NSW) Pty Ltd considered and applied; Ryder v Sundance Bakehouse considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 8 January 2024 New Stand Shop Fitters Pty Ltd, the appellant employer lodged an Application to Appeal Against a Medical Assessment Certificate (MAC) issued on
3 October 2023 by Dr David Croker, a Medical Assessor.On 15 December 2023 the Medical Assessor issued a further assessment or Reconsideration MAC.
By letter dated 19 January 2024 Mr Barber’s solicitors advised that he had passed away on
16 January 2024. They have instructions to oppose the appeal.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 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 12 July 2023 this matter was referred to the Medical Assessor for an assessment of WPI caused by injury to the left upper extremity and cervical spine on 22 February 2018. The MAC certified a total of 14% WPI on 3 October 2023. On 29 November 2023 the Personal Injury Commission (Commission) ordered that the referral be amended to incorporate a claim for scarring and the matter was referred back to the Medical Assessor pursuant to s 329 (1A) of the 1998 Act for reconsideration. The Medical Assessor issued a further MAC on
15 December 2023, assessing a further 1% WPI for scarring.Mr Barber was employed as a shop fitter.
The Medical Assessor related an earlier incident in late 2017 when Mr Barber felt a sudden “snap” to the region of the left shoulder girdle and consulted Dr Joe Cordaro, general practitioner (GP). Mr Barber was off work for a limited period of time and then returned to work.
On 22 February 2018, the date of injury, he was standing in the rear of a Pantechnicon whilst holding canvas ties which failed, causing him to fall back against a side metal wall of the vehicle and to fall down therein.
He underwent treatment which included an injection which did not produce any significant benefit. He proceeded to arthroscopic surgery of the left shoulder, inclusive of a rotator cuff repair, acromioplasty and biceps tenodesis on 28 May 2018 at Sydney Private Hospital Ashfield with Dr Doron Sher.
This intervention did not result in any significant benefit. Multiple injection procedures were conducted thereafter and a second option was sought from Dr Timothy Yeoh with whom
Mr Barber came to further surgery on 16 November 2020. This included the removal of a screw at a site where Mr Barber was experiencing significant discomfort.The Medical Assessor assessed 8% WPI in respect to the injury to the left upper extremity and 7% with respect to the injury to the cervical spine.
No deductions were made pursuant to s 323 of the 1998 Act and a combined table value of 14% was certified. The further 1% WPI for scarring resulted in an entitlement of 15% 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.
The appellant employer did not seek a re-examination of Mr Barber by a Member of the Appeal Panel and as no error was established, no such re-examination was required.
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 Barber had suffered a subsequent accident on
11 March 2023 in which he sustained multiple injuries when he was struck by a motor vehicle whilst he was crossing the road on a pedestrian crossing. His injuries included a fracture of the right clavicle, multiple rib fractures and various soft tissue injuries. He underwent an open reduction and internal fixation regarding the right clavicle fracture with Dr Geoffrey Petchell. On removal of the internal fixtures there was an indication of a fungal overgrowth and further investigations disclosed a valvular involvement likely having been an infective endocarditis. He also underwent thoracic aortic surgery.When describing Mr Barber’s social activities and activities of daily living the Medical Assessor said:[1]
“He stated that his partner substantially undertakes household chores. He reported that his medical conditions pertaining to both the regions of the cervical spine and shoulder girdles contribute to his limitations in this regard.”
[1] Appeal papers page 49.
In his summary of injuries and diagnoses at [7] of the MAC the Medical Assessor said:[2]
“With respect to the region of the cervical spine, I have had the opportunity of reviewing the x-ray report pertaining to this region of 23.2.18 that documents that there are changes evident consistent with moderate to severe multilevel degenerative changes. It is considered that Mr Barber had suffered an aggravation of previously asymptomatic degenerative changes/spondylosis as a consequence of the subject work-related injury.”
[2] Appeal papers page 50.
At [10b] the Medical Assessor said:[3]
“With respect to the region of the cervical spine, there is evidence of asymmetric limitation with active range of motion and accompanying muscular guarding in the absence of neurological dysfunction/radiculopathy. Taking these factors into account, a DRE Category II rating is applicable, ie 5-8%. When taking into account negative impacts upon activities of daily living pertaining to the condition of the cervical spine, it is considered that a 2% weighting applies. As such, there is a 7% whole person impairment determined.
In relation to the region of the left upper extremity and taking into account limitation with active range of motion at the shoulder girdle, a 14% upper extremity impairment is determined which converts to an 8% whole person impairment.”
[3] Appeal papers page 52.
At [10c], in commenting on the other medical opinions before him, the Medical Assessor noted that Dr James Bodel, consultant orthopaedic surgeon who was qualified on behalf of
Mr Barber had not made any deductions.He noted also that Dr Graeme Doig, consultant orthopaedic surgeon qualified by the respondent made a 1/10th deduction.
The Medical Assessor said:[4]
“Dr Doig has also indicated a one-tenth deduction taking into account pre-existing cervical degenerative changes. In this respect, it is my opinion that Mr Barber had been able to undertake full duties without medical restrictions in place and that I am not aware of him having complaints referable to the region of the cervical spine prior to the subject injury.
Taking these factors into account, I do not consider that there is justification for a deduction pertaining to this region.”
[4] Appeal papers page 53.
At [11c], the Medical Assessor said:
“It has been indicated that it is my opinion that there is nil evidence of a previous injury or condition that needs to be taken into account by way of contributory impairment that would justify any deductions.”
SUBMISSIONS
Appellant employer
The appellant employer submitted that by assessing 8% WPI for the left upper extremity, “and by the worker’s right clavicle fracture sustained on 11 March 2023,” that there was an impact on Mr Barber’s activities of daily living. It argued that this was “self-evident,” as the assessment included an allowance of 2% because Mr Barber was experiencing limitations in undertaking household chores caused by both his cervical spine and his shoulder girdle conditions.
The appellant employer acknowledged the provisions of Chapter 1.24 of the Guides which relevantly state:
“… The impact of the injury on ADL is not considered in assessments of the upper or lower extremities.”
As we understood the appellant employer’s argument, the Medical Assessor had erred because he had not given any reasons as to why he awarded the 2% rating in relation to the cervical spine, but did not differentiate between that and the impact on the activities of daily living that the upper extremity injuries had caused. We were referred to Coles Supermarkets Australia Pty Ltd v Gandhi[5] (incorrectly cited as “Gandi”).
[5] [2023] NSWSC 1251.
This failure was said to be a demonstrable error.
DISCUSSION
This submission may be dealt with shortly. As the appellant employer correctly pointed out, there is no provision within the guidelines for WPI to be awarded where the activities of daily living are restricted by injury to the upper extremities. We concur that Mr Barber’s injuries to his right upper extremity would probably have had an impact on his activities of daily living. However we were at a loss to understand the relevance of that submission. We were not referred to any legislation or authority that provided there should be an apportionment of WPI where a claimant’s activities of daily living are restricted by other injuries than those that are permitted under the guidelines.
As the Medical Assessor explained in his reasons at [10b], the guidelines for the assessment of cervical spine allow for a rating between 5 and 8% WPI. Table 15-5 of Chapter 15 of AMA 5 at page 392 provides that between 5 and 8% is the range that can be given for an injury to the cervical spine. Chapter 4.33 of the Guides provides:
“Impact of ADL. Tables 15-3, 15-4 and 15-5 of AMA5 give an impairment range for DREs II to V. Within the range, 0%, 1%, 2% or 3% WPI may be assessed using paragraphs 4.34 and 4.35 below. An assessment of the effect of the injury on ADL is not solely dependent on self-reporting, but is an assessment based on all clinical findings and other reports.”
Relevantly, the weighting is assessed on an injured person’s ability to do personal self care (3%), home care (2%) or yard/gardening, sport/recreation (1%) as these terms are defined in chapter 4.35.
There was no requirement for the Medical Assessor to provide reasons as to how he differentiated between the restriction of the activities of daily living caused by the cervical spine and the upper extremity, because there is no necessity to do so. It is, of course, necessary for a Medical Assessor to ensure that the weighting he gives for the permissible modification pursuant to Chapter 4.33 related only to the restrictions caused by the impairment to the cervical spine. We have noted above that in discussing Mr Barber’s activities of daily living, the Medical Assessor observed that the household chores were undertaken by Mr Barber’s partner, as Mr Barber reported that he was experiencing limitations in both the cervical spine and the upper extremity.
The Medical Assessor however stated that the weighting of 2% applied only in respect of the cervical spine injury, which passage we have also noted above. The Medical Assessor was thus aware of Mr Barber’s complaints that he suffered limitations on account of both injuries, but careful to state that he took into account only those negative impacts as they related to the cervical spine. Those reasons we accept as being adequate to explain his finding, which was in accordance with the evidence before him.
The relevance of Gandhi in this regard escapes us.
Section 323
The appellant employer also submitted that there had been an error because the Medical Assessor declined to make a deduction pursuant to s 323 of the 1998 Act.
The appellant employer submitted that the investigations of 23 February 2018 identified degenerative changes, and noted that the Medical Assessor accepted that the nature of the injury was indeed the aggravation of such changes.
We were referred to Chapter 1.28 of the Guides, which we note it is a not altogether accurate summary of s 323 of the 1998 Act. The appellant employer submitted that “the Medical Assessor has failed to make a deduction on the basis that the worker was asymptomatic prior to the injury”.
We were referred to the often-cited passage in Vitaz v Westform NSW Pty Ltd[6] as authority for the proposition that it was “well-established” that a condition can be asymptomatic but still justify a deduction pursuant to s 323.
[6] [2011] NSWCA 25.
We were also referred to Elcheikh v Diamond Formwork (NSW) Pty Ltd[7] and the well recognised authority that the application of s 323 involved a three-step approach, namely to identify the impairment caused by the subject injury, establish whether the pre-existing condition contributed to that impairment, and if it did, what proportion of that impairment was due to the pre-existing condition.
[7] [2013] NSWSC 365.
We were referred to dicta from Ryder v Sundance Bakehouse[8] to the effect that a Medical Appeal Panel has to be satisfied that “but for” the pre-existing condition the impairment caused by the subject injury would not have been as great.
[8] [2015] NSWSC 526
The appellant employer submitted that the Medical Assessor had erred in failing to allow a s 323 deduction “simply on the basis that the worker was asymptomatic prior to the injury.”
We were referred to the radiology and it was argued “without the pre-existing condition there would be nothing to aggravate, and so it follows that the pre-existing condition or abnormality has contributed to the current degree of whole person impairment.”
The respondent
We note the first 27 submissions made on behalf of Mr Barber. These submissions were concerned with procedural issues that were determined by the delegate of the President before the matter came before us.
We are grateful for the industry shown by the respondent regarding the first ground of appeal, which we have dismissed as having no merit. The respondent’s submissions appeared to be addressed to an issue that was not raised, namely the appropriateness of the 2% weighting given by the Medical Assessor. If it had been necessary, we would have confirmed that assessment as being open to the Medical Assessor on the evidence.
The respondent submitted that there was no evidence of a pre-existing injury to the cervical spine, and the radiological evidence showing the degenerative changes did not of itself justify any deduction. The Medical Assessor had reviewed the relevant radiology and indeed found that the nature of the injury was an aggravation of previously asymptomatic degenerative change. Reference was made to the authorities relied on by the appellant employer, and the respondent submitted that the Medical Assessor had considered the relevant evidence and explained his reasoning for differing from the appellant employer’s expert.
DISCUSSION
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.”
The appellant employer did not accurately describe the reasons given by the Medical Assessor regarding s 323 when it submitted that he had erred “simply on the basis that the worker was asymptomatic prior to the injury.” In considering Dr Doig’s advice that there should have been a 1/10th deduction, the Medical Assessor noted that Mr Barber had been able to undertake full duties without medical restrictions and there was no evidence of any prior complaints regarding the cervical spine.
Further, whilst Vitaz is authority for the proposition that an asymptomatic pre-existing condition may justify a deduction pursuant to s 323, Basten JA (McColl JA and Handley AJA agreeing) said at [43]:
“…In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.”
In this case there was a contest as to whether the pre-existing degenerative change actually contributed to the level of impairment, and moreover the Medical Assessor did give reasons as to why no deduction was appropriate. The reference by the Medical Assessor to the ability of Mr Barber to work full duties without medical restrictions is a sufficient basis for his determination, given that he had the advantage of assessing Mr Barber in person, and using his clinical judgement to assess this question.
We note further the submission by the appellant employer that without the pre-existing condition there would be nothing to aggravate, the nature of the injury being defined as an aggravation of pre-existing degenerative change. The appellant employer may very well be correct, but the submission is irrelevant to the task the Panel has to undertake, as we are not concerned with the cause of the injury itself, but rather the impairment that has arisen from it.
For these reasons, the Appeal Panel has determined that the MAC issued on 3 October 2023 should be confirmed.
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