Pollard v Toll Helicopters NSW - [2024] NSWPICMP 466

DETERMINATION OF APPEAL PANEL
CITATION:	Pollard v Toll Helicopters NSW [2024] NSWPICMP 466
APPELLANT:	Christopher Malcolm Pollard
RESPONDENT:	Toll Helicopters NSW
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Richard Haber
MEDICAL ASSESSOR:	Gregory Kaufman
DATE OF DECISION:	5 June 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker kicked in larynx during underwater training; consent orders in respect of assessment of nervous system (sleep and arousal disorder) respiratory disorder and ear, nose and throat (laryngeal disorder); referral to two Medical Assessors did not accurately reflect consent orders; first Medical Assessor in time assessed sleep but said that worker’s breathing disorder was laryngeal dysfunction to be assessed by lead assessor (ear, nose, and throat surgeon); second Medical Assessor assessed by reference to voice and deglutition; appeal only in respect of sleep and respiratory disorders; Skates v Hills Industries Ltd cited; American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed applied for assessment of nervous system and respiratory system; section 323 deduction; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 March 2024 Christopher Malcolm Pollard lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Mark Burns and Medical Assessor Brian Williams. Medical Assessor Williams issued a Medical Assessment Certificate (MAC) as lead Medical Assessor on 16 February 2024.
The appeal is in respect of Medical Assessor Burns’ assessment only. Mr Pollard relies on the grounds of appeal under s 327(3)(c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that:
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, that the ground of appeal in s 327(3)(d) was made out. We conducted a review of the original medical assessment, limited to the grounds 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

On 18 October 2018 Mr Pollard was providing in helicopter underwater escape training and training in emergency breathing systems and post-ejection sea survival in the course of his employment with Toll Helicopters NSW (Toll). He was injured when one of the participants panicked and accidentally kicked him in the throat. Whilst in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pollard v Toll Helicopters NSW and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPICMP 466
Decision Date: 5 June 2024

CaseChat Overview and Summary

The matter of Pollard v Toll Helicopters NSW was heard in the Workers Compensation Court. The appellant, Mr Pollard, a worker who sustained an injury to his larynx during underwater training, was appealing the decision of the respondent concerning the assessment of certain medical conditions. These included a nervous system (sleep and arousal disorder), a respiratory disorder, and an ear, nose, and throat (laryngeal disorder). The court was tasked with determining whether the referral of Mr Pollard to two Medical Assessors accurately reflected the consent orders made between the parties.

The central issue before the court was whether the referral to the Medical Assessors appropriately reflected the consent orders, particularly regarding the assessment of the sleep and respiratory disorders. The court had to determine if the Medical Assessors had correctly applied the relevant guidelines in their assessments. The court applied the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed., for assessing the nervous system and respiratory system. It also considered section 323 deduction and the relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998.

The court found that the referral to the first Medical Assessor did not accurately reflect the consent orders. The first Medical Assessor assessed the sleep disorder but incorrectly identified the breathing disorder as a laryngeal dysfunction to be assessed by the lead assessor. The second Medical Assessor assessed the laryngeal disorder by reference to voice and deglutition, which was outside the scope of the consent orders. The court referred to the precedent set in Skates v Hills Industries Ltd, which emphasised the importance of correctly applying the relevant assessment criteria. The court held that the Medical Assessment Certificate confirmed the findings of the appeal, indicating that the referral to the Medical Assessors did not comply with the consent orders.

The final orders of the court were that the Medical Assessment Certificate was confirmed, and the parties were to bear their own costs of the appeal. The court’s decision highlighted the importance of correctly applying assessment criteria and adhering to consent orders in workers compensation cases.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

AMA 5 states in section 11.4 The Nose, Throat, and Related Structures:“The nasal region includes the external part of the nose, the nasal cavity, and the nasopharynx. The oral region includes the mouth and lips, teeth, temporomandibular joint, tongue, hard and soft palate, region of the palatine tonsil, and oropharynx. The neck and chest region includes the hypopharynx, larynx, trachea, esophagus, and bronchi. The functions of these structures, and the order in which they will be discussed, are as follows: (1) respiration, (2) mastication and deglutition, (3) olfaction and taste, and (4) speech. Permanent impairment may result from a deviation from normal in any of the above functions, and, because of their close relationship, more than one structure may be involved. 11.4a Respiration Respiration may be defined as the act or function of breathing, that is, the act by which air is inspired and expired from the lungs. The respiratory mechanism includes the lungs and the air passages; the latter includes the nares, nasal cavities, mouth, pharynx, larynx, trachea, and bronchi.In this chapter, discussion of permanent impairments related to respiration is limited to defects of the air passages. Refer to Chapter 5 on the respiratory system for a discussion of impairments of the lower airways and lung parenchyma.” (our emphasis) That is, the act of breathing or respiration is assessed under the criteria for the respiratory system when the breathing impairment arises from an impairment of pulmonary (lung) function. Table 11-6 of AMA 5 provides the “Criteria for Rating Impairment Due to Air Passage Defects.” Each of the classes examines the extent to which dyspnoea (shortness of breath) occurs at rest, while walking and by exertion. Each class requires that:“…examination reveals partial obstruction of the oropharynx, laryngopharynx, larynx, upper trachea (to the fourth cartilaginous ring), lower trachea, and/or bronchi.” As Dr Johnson noted, that was probably the appropriate table for an ear, nose and throat surgeon assessing laryngeal function to apply. Medical Assessor Burns was asked to assess the respiratory system, which is assessed under a chapter 5 of AMA 5 and chapter 8 of the Guidelines. AMA 5 says in section 5.10 headed Permanent Impairment Due to Respiratory Disorders:“Table 5-12 lists criteria for estimating the permanent impairment rating due to respiratory disorders, using pulmonary function and exercise test results. Perform spirometry and Dco on each person being evaluated. VO2max may provide additional information in selected individuals when indicated.…The classification system in Table 5-12 considers only pulmonary function measurements for an impairment rating…” As Medical Assessor Burns pointed out, Mr Pollard’s lung function tests were at the lower end of normal. Though the VO2max was abnormal, it was not because of the function of Mr Pollard’s lungs. Table 12-5 was inappropriate for the assessment. A careful reading of Dr Freiberg’s report dated 20 August 2022 shows that he agreed that Mr Pollard’s lung function tests were normal but that the results represented the narrowness of his upper airway. Dr Freiberg confirmed that the exercise test was terminated due to Mr Pollard’s sensation of laryngeal closure and the inability to ventilate. Nonetheless he relied on the VO2max reading only and used Table 5-12 to assess Mr Pollard. The extract we have set out from AMA 5 at [74] above, shows that was not the appropriate table when the reason for breathlessness was not pulmonary impairment. Table 5-12 did not become relevant solely because of one abnormal component of exercise test results.