Pham v Quality Bakers Australia Ltd t/as Goodman Fielder
[2022] NSWPICMP 101
•2 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Pham v Quality Bakers Australia Ltd t/as Goodman Fielder [2022] NSWPICMP 101 |
| APPELLANT: | Van Cuong Pham |
| RESPONDENT: | Quality Bakers Australia Ltd t/as Goodman Fielder |
| APPEAL PANEL: | Member Paul Sweeney Dr James Bodel Dr Margaret Gibson |
| DATE OF DECISION: | 2 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker alleges that Medical Assessor (MA) did not assess the medical dispute referred to him; he assessed whole person impairment (WPI) resulting from injury simpliciter rather than an injury which consisted in the aggravation of a disease in accordance with section 16 of the Workplace Injury Management and Workers Compensation Act 1998; the MA also erred in adding 2% WPI for ADLs; as the worker had difficulties with selfcare he should have added 3%WPI; Held- that while there were some ambiguities in the Medical Assessment Certificate (MAC) the worker had not demonstrated that the MA had failed to determine the medical dispute referred for assessment or erred in his assessment of ADLs; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 January 2022, Van Cuong Pham (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 11 January 2022.
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 grounds 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 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 is a long-term employee of Quality Bakers Australia Ltd t/as Goodman Fielder (the respondent). Between 20 December 2005 and June 2018, the appellant performed several different roles at the respondent’s premises at Moorebank. He commenced work as a general labourer and subsequently worked as a machine operation and a packer.
The appellant says, and it is not disputed by the respondent, that these jobs involved repetitive bending and the work of a machine operator involved heavy lifting. By his Injury Claim Form, dated 7 August 2019, it is recorded that the appellant last worked in the “garlic operator” role, process work involving tipping crates of bread. The appellant’s injury is recorded in that document as follows:
“Working in the garlic bread line 2 tipping crates of bread. Lots of bending, lifting and twisting. I felt pain completing the task and reported to my supervisor.”
The appellant ceased work on 23 April 2018. He consulted Dr Nguyen of Busby who prescribed painkillers, and after a week off work, returned to light duties. He was seen by the company doctor, Dr Tom Lieng, who ultimately referred him to Dr Simon McKechnie, a neurosurgeon.
On 8 August 2019, Dr McKechnie reported to Dr Lieng that an MRI scan of May 2019 demonstrated wedging of the L2, L3 and L4 vertebra with disc protrusions in the mid-lumbar spine and left L4 and L5 nerve root impingement. The disc pathology is maximal at L3/4 and L4/5. Dr McKechnie recommended non-operative treatment. However, he stated he would “not recommend he return to his previous work if this involves repetitive heavy lifting”.
The appellant also saw Dr Letran, a general practitioner in Green Valley, who referred him to Dr Renata Bazina, a neurosurgeon. On 30 May 2019, Dr Bazina expressed the opinion that the appellant had mechanical back pain “reflective of disc origin”. She recommended conservative treatment and a nerve block at L4/5 “if he had an exacerbation of his left-sided back pain”. She also thought that it would be “a few more months of back strengthening and activity pacing” before consideration of any return to work.
By a further report of 4 November 2019, Dr Bazina expressed the opinion that manual labouring work had resulted in an aggravation, acceleration and exacerbation of degenerative pathology in the appellant’s lumbar spine.
On 31 May 2019, the appellant saw Dr Mark Borkman, a rheumatologist. Dr Borkman expressed the opinion that the appellant had osteopaenia “in conjunction with mild anterior wedging of lumbar vertebra”. He expressed the opinion that anti-resorptive therapy could be withheld at this stage and restored if there was evidence of further vertebral fracture and/or if his T-score declined to minus 2.5. He suggested treatment with vitamin D and a reasonable intake of dairy food. He doubted that the appellant’s back pain was related to the osteopenia or the lumbar wedge fractures. He stated that:
“The symptoms are more likely to be consequent to degenerative spinal disease.”
On 13 April 2021, the appellant saw Dr Medhat Guirgis at the request of his solicitor. Dr Guirgis expressed the opinion that the appellant had suffered an aggravation and acceleration of “age-appropriate changes in the intervertebral discs, the facet joints and the discovertebral endplates” as a result of the nature of his employment. This included an aggravation of:
“the effects of early but subtle changes of osteopaenia in the lumbar spine as shown in his BMD studies performed on 4-219, resulting in multiple anterior wedge fractures of the L1 to L4 vertebral bodies”.
Dr Guirgis expressed the following opinion in respect of the vertebral fractures:
“While repetitive mechanical loading will stimulate osteogenesis (Wolff’s law) and improve bone quality, yet such loading parameters need to be within the physiologic capacity of the compromised bone. The vertebral body is particularly vulnerable to develop anterior compression fractures when its bone mineral density (BMD) falls with age as what happened here.”
Dr Guirgis measured the wedge fractures at L1 to L4 and concluded that the total loss of vertebral height was more than 50%. He, therefore, expressed the opinion that the appellant fell within Diagnosis Related Estimate (DRE) IV of AMA 5 and assessed 20% WPI. Dr Guirgis then added 2% to reflect the restriction of the appellant’s activities of daily living (ADLs) resulting from the injury.
Dr Guirgis deducted one tenth pursuant to s 323 (2) of the 1998 Act to reflect the contribution of the appellant’s underlying degenerative changes, presumably including the osteopaenia, to the assessed impairment. That gave rise to a final assessment of WPI as 20%.
Dr Gregory Burrow, an orthopaedic surgeon, saw the appellant at the request of the respondent’s insurer and provided a report of 7 July 2021. Dr Burrow took a history that the appellant had attended on multiple occasions for treatment of low back pain from July 2014. He noted that on “at least one of these occasions the pre-incident back pain related from lifting a child”. Dr Burrow also took a history that on 23 April 2018, the appellant was
“lifting several trays of bread and felt excruciating low lumbar pain with referred pain into his left buttock and down his leg to the knees”.
Dr Burrow expressed the opinion that the appellant had mechanical low back pain against a background of constitutional lumbar spine arthrosis and “constitutional non-work-related osteoporotic compression fractures of the upper lumbar elements”. He specifically addressed the lumbar wedge fractures in the following terms:
“The partial crush fractures are due to osteoporosis, and there were no acute changes to suggest that they were the result of a work incident around April 2018. They were chronic and remain stable”.
Dr Burrow thought that the appellant’s prognosis was poor given the longevity and duration of his symptoms. He thought that he was only fit for sedentary or semi-sedentary work and that such work would be extremely difficult to access given his language difficulties and occupational experience.
Dr Burrow expressed the opinion that the appellant had 7% WPI flowing from an assessment of DRE lumbar category II . He also expressed the opinion that there was a deductible proportion pursuant to s 323(1) of the 1988 Act of one half.
The difference of opinion as to WPI between Dr Guirgis and Dr Burrow gave rise to a medical dispute as that term is used in s 319 of the 1998 Act. A delegate of the President referred the dispute to Dr Anderson for determination. It is from Dr Anderson’s MAC that the appellant appeals.
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 PIC Rules.
As a result of that preliminary review, the panel determined that it was unnecessary for the worker to undergo a further medical examination. Neither party requested that the appellant be re-examined by a member of the panel and the panel did not believe that a further medical examination would illuminate any of the issues raised on the appeal.
EVIDENCE
The appeal panel has before it all the documents which were sent to the MA 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 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 in full, but have been considered by the appeal panel.
In summary, the appellant raised two issues. First, he submitted that the determination of the MA was inconsistent with the referral and with the medical dispute underlying that referral. The MA had only considered a personal injury on 23 April 2018 and not the aggravation of a disease by the appellant’s employment. Secondly, he submitted the MA erred in his assessment of ADLs as he did not recognise that chapter 4.33 of the Guidelines permitted a determination of an additional 3% WPI for the effects of the injury on ADLs.
In respect of the first issue, the appellant submitted:
“The referral to the Medical Assessor, by agreement of the parties, was to include, inter alia, a disease injury which the Appellant sustained during the course of his employment with the respondent between 20 December 2005 to 23 April 2018.”
Conversely, the MA only considered the incident which occurred on 23 April 2018. He therefore failed to consider the aggravation/exacerbation effects of the work duties over the 13 years upon the “age-related osteopaenia”.
The appellant submitted that as the certification of the MA was based on an assumption inconsistent with the referral and the medical dispute it was ultra vires. Alternatively, the failure of the MA to consider aggravation/exacerbation of the wedging/compression fractures during the course of the appellant’s employment was either a demonstrable error or incorrect criteria.
In respect of ADLs, the appellant submitted that the MA:
“Has not identified any reasons in assessing 2% WPI for the impact the injury has had on ADLs. The appellant respectfully submits that the Medical Assessor was of the view that the maximum impairment that can be assigned for impacts on ADLs as been [sic] only 2%”
The appellant sough the revocation of the MAC and the issue of a new MAC which contained an assessment of the lumbar spine in accordance with DRE IV of AMA 5 and the Guidelines and an assessment of an additional 3% WPI for the impact of injury on the appellant’s ADLs.
The respondent acknowledged that the injury referred was a disease with a deemed date of injury of 23 April 2018. It disputed, however, that the MA had limited his assessment to the injury on 23 April 2018. It observed that he recorded that the appellant had performed heavy work over the years of his employment with the respondent and that he had experienced pain in his lower back which was managed conservatively. The respondent submitted that the MA:
“based on his assessment on a disease injury as opposed to a frank injury and has taken into account the full extent of the applicant’s allegations regarding the mechanism of injury.”
Whereas Dr Guigis had associated the lumbar wedging with the effects of the appellant’s employment, the MA thought that it was “much more likely to be associate [sic] with his pre-existing condition of osteopaenia”.
The respondent submitted that it was open to the MA on the evidence before him to conclude that the compression fractures and wedging was unrelated to employment. In the context of conflicting medical evidence, the MA was able to draw on his expertise and clinical judgment to reach his own conclusion as to the relationship between employment and the wedging in the appellant’s .
In respect of ADLs the respondent acknowledged that the MA had incorrectly stated that the range for DRE lumbar category II was between 5% and 7%, whereas the correct range was between 5% and 8%. Nonetheless, the respondent submitted that the evidence was consistent with an application of 2% WPI for ADLs “which arises when a worker can manage personal care but is restricted with usual household tasks” pursuant to Ch 4.35 of the Guidelines.
Finally, the respondent submitted that both medical experts Dr Guigis and Dr Burrows had assessed 2% WPI for ADLs.
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 (Wingfoot) 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 Wingfoot, 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 Wingfoot 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).
There is no doubt that the allegation made by the appellant in his Application to Resolve a Dispute (ARD) was one of aggravation, acceleration etc of a disease over the entirety of his employment with the respondent between 20 December 2005 and 23 April 2018. The ARD identifies the “Type of Injury” as a “Disease”. It nominates 23 April 2018 as the deemed date of injury and it describes the nature of the work which allegedly aggravated the condition of the appellant’s back in great detail under the heading “Injury Description”.
The identification of the nature of the injury in the ARD was obviously based on the formulation of Dr Guirgis in his report of 13 April 2021, which has been summarised above. While the respondent’s medical evidence did not specifically rebut the entirety of Dr Guirgis’ reasoning, it is clear that the medical dispute raised by this medical evidence must include the assertion that the wedge fractures in the appellant’s lumbar spine were caused by the nature of his employment.
On 29 October 2021, a member of the Personal Injury Commission referred the matter for assessment in the following terms:
“The matter is remitted for referral to a medical assessor (MA) to assess the degree of permanent impairment, if any, of the lumbar spine as a result of injury deemed to have occurred on 23 April 2018”.
A copy of the Certificate of Determination issued by the Member was attached to the referral dated 11 November 2021. It referred the appellant’s lumbar spine for assessment on the basis of an injury on 23 April 2018 (deemed).
The MA summarised the appellant’s injuries and diagnoses as follows:
“Mr Pham gave a history of hurting his lower back on several occasions while he has been working as a baker. There was a period of time in 2015 when he had two months off work. Nevertheless, he seemed to recover from this. In late April 2018, there was further lower back deterioration and radiological investigations demonstrated minor wedging at L3/4/5. There was also evidence of osteopaenia. A bone scan taken soon after the development of this condition did not demonstrate any evidence of any recent bony injury. It is therefore concluded that the wedging is not associated with this recent related phenomenon.”
The above summary is consistent with the MA considering the entirety of the appellant’s employment, including the problems experienced by the appellant in 2015, from which he “seemed to recover”.
There are, however, aspects of the MAC which suggest that the MA may have confined his enquiry to the incident that put the appellant off work in 2018. His reference to the lumbar wedging not being associated with “this recent work-related phenomenon” raises the possibility that he did not consider whether the wedging was related by way of aggravation or exacerbation to the undoubtedly heavy nature of the appellant’s work over a period of 13 years. It is also evident that the word “deemed” which appears in the referral after the date of injury has been omitted in the MAC.
On the other hand, the MA appears to clearly confront this proposition when dealing with the report of Dr Guigis of 13 April 2021.The MA notes that Dr Guigis “takes the view that the wedging is associated with his occupation as opposed to any other cause”. He states that he is at variance with this view because the wedging is “not recent and is therefore much more likely to be associated with his pre-existing condition of osteopaenia”.
It follows that the MA was undoubtedly mindful of the hypothesis proposed by Dr Guirgis that the appellants osteopenia had been aggravated by the nature of his work over the years thus causing a wedge fracture. Equally clearly, the MA rejected that theory. Earlier in the MAC he had noted the following:
“Osteopaenia has previously been identified, which is considered to be the major reason for the lumbar wedging.”
Thus, while Dr Guirgis thought that the wedging was associated with the occupation as opposed to any other cause, Dr Anderson thought that it was essentially related to his osteopenia. That view was shared by Dr Burrows. He said this in his report:
“No, his current limitation is due to constitutional disease that has been present for many years for which he consulted various general practitioners from as early as 2014 and had extensive non-operative treatment and time off work.
There is no documented evidence of a pre-existing work related injury although Mr Pham said his pre-incident back problems were "due to work".
There is no documentary evidence to support this claim, in fact at least one episode of back pain occurred as a result of lifting a child.”
It is of course for the appellant to prove demonstrable error by the MA. There is no doubt that it was open to him to find that osteopaenia and not the work was the cause of the lumbar wedge fractures. While the referral of the issue of WPI to the MA involved an acceptance by the respondent that the appellant suffered a back injury in the course of his employment, the precise nature of that injury and whether it gives rise to permanent impairment is solely within the prerogative of the MA: see Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (14 August 2014).
For the reasons expressed above, there are ambiguities in the way in which the MA has formulated the nature of his task. In the opinion of the panel, however, they do not establish demonstrable error by the MA. Equally, if the concept has any application to a medical appeal, they do not establish that the MAC is ultra vires.
While the MA, for good reason, did not accept Dr Burrows’s opinion that the appellant’s back problems were largely constitutional, that doctor’s evidence does emphasise the difficulty of ascertaining when the appellant suffered his lumbar wedge fractures. Certainly, they occurred before the episode of back pain which are commenced in 2018. In view of the appellant’s osteopenia, they may have occurred at any time during the course of the appellant’s employment or outside it. One or more of the wedge fractures may have predated the appellants employment with the respondent. They may be entirely related to the applicant’s osteopenia.
There is no documentary evidence which would enable the panel to conclude more probably than not that the wedge fractures resulted from the appellant’s employment. The clinical notes of the applicant’s general practitioners do not assist. Accordingly, on the assumption that there is error in the way in which the MA approached the assessment, the panel would reach the same result on re-assessment. While Dr Guirgis has put forward a different hypothesis, in the opinion of the panel it is only one possible view of causation of the lumbar wedge fractures.
While the appellant’s work aggravated his back condition, there is no satisfactory evidence that it caused the wedge fractures in his lumbar spine.
ADLs
In the opinion of the panel there is little merit in the assertion that the MA erred in determining that the appellant should have an additional 2% for the impact of ADLs in accordance with chapters 4.33 to 4.36 of the Guidelines.
As the respondent submitted both Dr Guirgis and Dr Burrow assessed an additional 2% on the basis that the appellant may have difficulty with outdoor activity and home care but was largely capable of self-care. The MA recorded an adequate history on which to base such an assessment. It included the fact that the appellant could cook for himself, is a keen swimmer, could drive for half an hour and, importantly “has to clean his own room”.
Further, there is nothing about the appellant’s medical condition which should prevent him from performing basic household tasks at his own pace. Accordingly, the panel concluded that while there is error (probably typographical in nature) in the MAC it has not resulted in an erroneous finding as to WPI for the ADLs.
For these reasons, the appeal panel has determined that the MAC issued on 11 January 2022 should be confirmed.
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