Page v State of NSW (Central Coast Local Health District)

DETERMINATION OF APPEAL PANEL
CITATION:	Page v State of NSW (Central Coast Local Health District) [2022] NSWPICMP 111
APPELLANT:	Colleen Page
RESPONDENT:	State of NSW (Central Coast Local Health District)
APPEAL PANEL:	Member John Wynyard Dr Tommasino Mastroianni Dr Roger Pillemer
DATE OF DECISION:	10 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Appeal against ½ deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor had erred in following the terms of the referral which the appellant maintained were erroneous; whether dispute agreed by the parties to be referred was intended to be a deemed date of injury; Held- prior proceedings were agreed to be in respect of a deemed date; the pleadings in the present ARD named a deemed date of injury; terms of referral incorrect; issue not responded to in terms by respondent; Skates v Hill Industries Ltd applied; Medical Assessment Certificate a nullity; matter reverted to the Commission.

BACKGROUND TO THE APPLICATION TO APPEAL

On 27 January 2022, Colleen Page, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr SK Cyril Wong, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 December 2021.
The appellant relies on the following ground of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 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

The appellant was employed as a hospital pharmacy porter at Gosford Hospital for about 15 years.
She noted pain at the base of her right and left thumbs on 8 October 2018 when she was thereafter referred to orthopaedic surgeon Dr Steven Marchalleck and steroid injections were administered to the right thumb.
In 2019 she had an excision of the trapezium and arthroplasty to the right thumb with
Dr Marchalleck and came to a similar operation on the left thumb in 2020.
On 17 November 2021 a referral was issued to the MA seeking an assessment of WPI caused by injury to the left upper extremity and the right upper extremity on a date of injury given as “8/10/2018”. The Application to Resolve a Dispute (ARD) sought assessment in those terms - except that the box within the “injury details” of the ARD form labelled “deemed date” had been ticked. The claim for the relief sought, lump sum compensation, however did not indicate that the date was a deemed date.[1]
[1] Appeal papers p 40.
A WPI of 10% was assessed by the MA being 10% WPI for each upper extremity, from which one half was deducted pursuant to s 232 of the 1998 Act.

SUBMISSIONS

The appellant

From this inconsistent description in the pleadings and the terms of the referral, some confusion has arisen. The appellant submitted that:
“The medical assessor has mischaracterised the nature of the injury sustained by the applicant in that he appeared to have proceeded on an understanding that the injury, the subject of the proceedings occurred on a specific date….
The medical assessor appears to have proceeded on an understanding the injury the subject of these proceedings occurred on a specific date i.e. that the subject of the referral was an injury simpliciter, rather than a disease injury. This is incorrect and inconsistent with the history of the claim at all stages and the pleadings filed.”
The appellant asserted that earlier proceedings in matter no. 3571/19 had also been for a disease injury with a deemed date of injury of 8 October 2018. That claim was brought pursuant to s 60(5) of the Workers Compensation Act1987 (1987 Act) for surgery.
The result, the appellant submitted, was that the MA had not acknowledged that this was a disease claim and in doing so had failed to consider the 15 years of service the appellant had given to the respondent and the totality of her employment duties.
The appellant then made submissions as to how the one-half deduction made by the MA was inappropriate in those circumstances.

The respondent

The respondent submitted, relying on an old authority in 2003, that the assessment was entirely a matter for the MA. It was submitted that there was no evidence that the examination by the MA was in any way materially defective. It submitted that although the appellant contended that the MA mischaracterised the nature of the injury in issue, nonetheless the MA obtained a detailed history and arrived at the diagnosis after a proper and complete examination.
The respondent submitted that the mischaracterisation alleged by the appellant was speculative and inconsistent with the MAC. It then addressed the provisions of s 323 of the 1998 Act.

Discussion

It is not necessary to deal further with the facts of the case, as they fall squarely within recent authority relating to the position of referrals in the process of medical dispute resolution.
The issue arises because, as we noted, the date of injury in the referral did not reflect the intention of the appellant, and, it would seem, the respondent. There are significant differences in the application of s 323 of the 1998 Act between the two categories of injury defined by s 4 of the 1987 Act.
Section 323 provides relevantly:
“323 DEDUCTION FOR PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
(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.”
Section 4 provides relevantly:
"‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means-
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
If an injury is a disease injury, the procedural sections at ss 15 and 16 of the 1987 Act provide how liability is to be decided.
Sections 15 and 16 provide relevantly:
“15 DISEASES OF GRADUAL PROCESS--EMPLOYER LIABLE, DATE OF INJURY ETC
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process-
(a) the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii)if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
16 AGGRAVATION ETC OF DISEASES--EMPLOYER LIABLE, DATE OF INJURY ETC
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(a)the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii)if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
It can be seen that these two procedural provisions deem the last employer to be liable in their specific circumstances, and hence the word “deemed” in a referral is an indication that an injury is a disease injury.
The application of s 323 to the disease categories of injury carries different assessment criteria, because the injury is deemed to have occurred over the entire period of employment. The question is not whether a worker had any pre-existing condition at the date ascribed to his injury, but rather at the commencement of employment[2]. The referral has accordingly instructed the MA to consider the wrong injury. The assessment criterium regarding the date of injury in the present case is whether a worker had an injury on the actual date mentioned in the referral. The MA has accordingly quite properly assessed Ms Page’s pre-existing condition as she presented on 8 October 2018. We make no comment on the actual degree of previous impairment assessed by the MA, as the matter will probably need to be
[2] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1415 (Cullen).
re-assessed by another MA in due course.
In applying Cullen, Johnson J in Craigie v Faircloth & Reynolds Pty Ltd[3] set out the argument before him from [33]:
“33    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.
34 …
35     It will be apparent from the ‘Parties’ Consent Statement’ set out earlier (at [9]) that the First Defendant agrees that there was a failure on the part of the Medical Appeal Panel to apply the principles in Cullen.
36     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’.”
[3] [2021] NSWSC 1211.
In Skates v Hills Industries Ltd[4] the primacy of the terms of the referral were considered. In the Supreme Court, Adamson J said at [73]:[5]
“While the Appeal Panel was correct to determine that the AMS had gone beyond the terms of the referral … the Appeal Panel should have reverted to the Registrar to obtain a referral which reflected the parties’ agreement as to the correction required….”
[4] [2020] NSWSC 837 (Skates).
[5] [2021] NSWCA 142 (Skates).
In the Court of Appeal, Basten JA at [35] approved Adamson J’s finding in terms. In doing so he said:
“Further, it is apparent that the referral by the Registrar was in a standard form, as was the application to resolve a dispute. There was no suggestion that these forms were not in appropriate terms. It follows that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession which it was held should have been taken into account in assessing the claim) was correct in concluding that Dr Machart’s assessment contained demonstrable error in failing to be limited to the terms of the claim.”
Leeming JA said at [48]:
“The [referral] is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute.”
McCallum JA said:
“Since preparing this judgment, I have had the benefit of reading the judgment of Basten JA in draft. His Honour’s reasoning has prompted me to clarify my position as to the status of the Registrar’s referral. I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
As indicated, the pleadings in the ARD form claimed a deemed date of injury. We note also the submission by the appellant that a prior related application also alleged the same deemed date of injury. This allegation has not been contradicted. The respondent did not address that submission, beyond describing the allegation that the MA had mischaracterised his function as “speculative”.
We note in passing that the Commission as a matter of practice issues the parties with the terms of the proposed referral for the very purpose to detect any errors such as appear to have occurred in this case. Neither party made any objection to the description of the injury date in the proposed referral. In Skates at [36] Basten JA referred to a similar failure by the parties as “inexplicable”.
The parties have leave to approach the Panel if the respondent wishes to argue that it was agreed that the referral should be issued in its actual terms.
The question then arises as to the options open to the panel. By s 328(5) of the 1998 Act provides:
“(5) The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned….”
The opinion of the Court of Appeal is that a panel may also “revert” the matter to the President where the terms of the referral are not complied with by the MA.
Such a reversion can only occur if the decision of the MA is a nullity as a result of the error in the referral. The decision of the MA must be declared null and void because it was the intention of the parties it would seem that this matter be referred as a deemed date of injury. Different considerations apply to the application of s 323 of the 1998 Act, as we have discussed.
It follows that the matter will have to be re-assessed as a deemed injury, that is to say an injury pursuant to s 4(b)(i) or (ii), probably (ii), of the 1987 Act.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 December 2021 is a nullity, and the matter is reverted to the Commission to be re-assessed.

[2022] NSWPICMP 111

10 May 2022