Qantas Airways Limited v Katz
[2024] NSWPICMP 189
•3 April 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Limited v Katz [2024] NSWPICMP 189 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Michael Katz |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Gregory McGroder |
| MEDICAL ASSESSOR: | Brian Stephenson |
| DATE OF DECISION: | 3 April 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; appeal by employer against assessment of DRE cervical category III; whether mistaken declaration by Medical Assessor (MA) that employer’s qualified medical expert reports were not before him vitiated the Medical Assessment Certificate (MAC); whether identification of further injury by MA an error; whether radiculopathy present; whether a section 323 deduction should have been made; Held – employer submissions rejected as to MA’s finding of another injury; no impairment assessed; section 326(2) applicable; employer submission as to radiculopathy rejected as proper consideration not given to examination findings by the MA; demonstrable error established as to mistake of MA, reports of employer’s qualified expert examined by the Panel and rejected: Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd, Vitaz v Westform (NSW) Pty Ltd and Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills considered and applied; MAC confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 October 2023 Qantas Airways Limited, the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Roger Pillemer, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 11 September 2023.
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 assessment was made on the basis of incorrect criteria, and
· 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 14 August 2023 the delegate of the President referred this matter to the Medical Assessor for an assessment of WPI caused to the cervical spine on a deemed date of 14 August 2019.
Mr Katz was employed by Qantas Airways Limited (the respondent) as a long-haul flight attendant when on 14 August 2019 he was injured in some turbulence on a flight from Sydney to Singapore. He struck the left side of his head against a door, jarred his neck and was immediately aware of pain in his neck, and tingling in his left arm going down into the fingers of left hand.
He has undergone treatment in the form of medication, physiotherapy, facet blocks and occipital nerve blocks.
He has been under the care of pain specialist and exercise physiologist and a rehabilitation specialist.
He has discussed the possibility of surgery with his treating specialist.
The Medical Assessor gave a 17% WPI assessment.
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.
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, although a demonstrable error was established, it did not require a revocation of the MAC, and a re-examination was not indicated.
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.
The MAC
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
With regard to any previous condition the Medical Assessor said:[1]
“Mr Katz had no problems with his neck or arm prior to his injury in August 2019 and has not had any further incidents”.
[1] Appeal papers page 28.
In his findings on physical examination, the Medical Assessor said:[2]
“His left biceps jerk was slightly restricted compared to the right side, and he also has distinct hypoaesthesia to pinprick down the lateral border of his left forearm into his thumb, as well as some hypoaesthesia of the index and middle fingers of his left hand (see below). This sensory loss is in a distinct C6 distribution.
In addition to the C6 nerve root involvement, Mr Katz has evidence of a left carpal tunnel syndrome with sensory involvement of the thumb, index and middle fingers, as well as a positive Tinel’s sign whereby tapping over the carpal tunnel produces paraesthesias radiating into these digits. Pressure over the carpal tunnel also causes paraesthesias into the digits positive (Durkan’s test).”
[2] Appeal papers page 29.
The Medical Assessor made the following observations as to the investigations undergone by Mr Katz:[3]
“Mr Katz did not have any investigations with him today but I note that an MRI of his cervical spine on 20 August 2019 showed mild to moderate cervical spondylosis with possible irritation of the left C5, C6 and C7 nerve roots being present.”
[3] Appeal papers page 30 at [6].
At [7] in his summary, the Medical Assessor said:[4]
“Mr Katz sustained an injury to his cervical spine on 14 August 2019, when because of turbulence in the plane, he lost his balance and struck the left side of his head against a door. He was immediately aware of severe pain in his neck with radiation down his left arm and into his left thumb. He has had significant ongoing problems since then.
As far as diagnosis is concerned, he has evidence of C6 nerve root involvement (that is, radiculopathy), as well as having evidence at this stage of carpal tunnel syndrome as well as ulnar nerve irritation. He also has restriction of shoulder movement, but it is unlikely that there is any primary pathology in the shoulder.”
[4] Appeal papers page 30.
At 10a the Medical Assessor explained his assessment and stated also:
“I would not make any deduction for any pre-existing condition.”
At [10c] the Medical Assessor said:[5]
“I note the reports of Dr J G Bodel, orthopaedic surgeon of September 2021 and March 2022, placing Mr Katz in DRE Category III of his cervical spine with C6 nerve root involvement, and 17% WPI, and I have agreed with this suggestion. I have also agreed not to make any deduction for pre-existing condition.
Dr Bodel has added an extra 6% WPI for the restricted range of shoulder movement, but as noted the referral is simply for the cervical spine. In addition to the restricted shoulder movement, as noted in my opinion he also has carpal tunnel and ulnar nerve signs and symptoms. …..
I note that there was a consultation and report from Dr R Wallace, orthopaedic surgeon of 5 November 2022, but I was unable to find this report amongst the documents sent to me or listed. However, I note from a Qantas letter to Mr Katz dated 21 December 2022 (page 155) of the documents and page 32 out of 107, that Dr Wallace’ opinion was that Mr Katz had aggravated pre-existing degenerative cervical spondylosis and placed him in DRE Category II with 7% WPI, and then made a deduction of one-tenth, leaving Mr Katz with 6% WPI.
I note that Dr Wallace suggested that there was no evidence of radiculopathy.
As noted in my opinion, Mr Katz does have clear evidence of C6 radiculopathy.”
[5] Appeal papers pages 31-32.
SUBMISSIONS
The first ground relied on is that the Medical Assessor had made a demonstrable error in diagnosing the existence of carpal tunnel syndrome.
Discussion
This ground may be dealt with shortly.
The appellant employer acknowledged that the effect of Skates v Hill Industries Ltd[6] (and presumably the subsequent Court of Appeal decision of the same name) was that a medical assessor would be in error to assess the degree of permanent impairment in body parts that were not within the ambit of the referral. An examiner is however quite entitled to identify the various injuries he finds in his examination, whether referred or not. His opinion as to injuries that were not referred are not binding.[7] His error would be if he then went on to assess the degree of permanent impairment caused thereby when that injury had not been the subject of the referral.
[6] [2020] NSWSC 837.
[7] Section 326(2) 1998 Act.
The Medical Assessor in this case did not make such an assessment and this ground may be put to one side.
The second ground of appeal alleged that the Medical Assessor had applied incorrect criteria on the basis that his assessment of radiculopathy was inconsistent with the guidelines.
We were referred relevantly to Chapter 4.27 of the Guides, which the appellant employer kindly reproduced. It submitted that it was:
“…necessary for the MA to determine whether the Respondent demonstrates the clinical criteria outlined in [Chapter] 4.27 and 4.28 of the Guidelines. The MA must perform a ‘careful and thorough’ physical examination and provide a comprehensive description as to whether the Respondent demonstrates radicular symptoms.”
The appellant employer then submitted that, on its reading of the reasons, the Medical Assessor failed to do so.
Discussion
This submission may also be dealt with shortly. The careful and thorough physical examination was in fact conducted, which we have reproduced above. The requisite criteria set out in Chapter 4.27 were clearly identified in terms of the opening of Chapter 4.27:[8]
“Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. In general, in order to conclude that radiculopathy is present, two or more of the following should be found, one of which must be major (major criteria in bold):”
[8] Guides page 27.
We reproduce the criteria, and for clarity, the relevant finding by the Medical Assessor by each relevant criterion:
“Loss or asymmetry of reflexes:
The Medical Assessor found:
‘His left biceps jerk was slightly restricted compared to the right side..’
Muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
Reproducible impairment of sensation that is anatomically localised to an appropriate spinal nerve root distribution
The Medical Assessor found:
‘… he also has distinct hypoaesthesia to pinprick down the lateral border of his left forearm into his thumb, as well as some hypoaesthesia of the index and middle fingers of his left hand (see below). This sensory loss is in a distinct C6 distribution.
Positive nerve root tension
Muscle wasting
Findings on an imaging study consistent with the clinical signs’
The Medical Assessor found:
‘…an MRI of his cervical spine on 20 August 2019 showed mild to moderate cervical spondylosis with possible irritation of the left C5, C6 and C7 nerve roots being present.’”
It can thus be seen that the Medical Assessor identified three criteria – one more than the minimum required by Chapter 4.27 of the Guides, namely two major and one minor. In technical matters regarding this jurisdiction, it would perhaps be helpful if expert advice were obtained before submissions such as these were made to expert panels.
This ground may also be dismissed.
The third ground related to the Medical Assessor’s statement that he had not been provided with the report of Dr Raymond Wallace, orthopaedic surgeon, dated 5 November 2022, and on which liability had been declined. Moreover, the appellant employer submitted that a further report of Dr Raymond Wallace had been before the Medical Assessor dated 24 April 2023.
The appellant employer submitted, quite reasonably, that it had been denied procedural fairness, as we understood the extensive submissions in that regard. In particular, it submitted that its argument regarding the applicability of s 323 of the 1998 Act had not been considered by the decision maker – the Medical Assessor.
A further submission was that the Medical Assessor did not therefore respond to Dr Wallace’s opinion that there was no evidence of radiculopathy.
Respondent’s submissions
As can be seen from our decisions in discussing the submissions of the appellant employer, the only arguable ground relates to the failure of the Medical Assessor to find and comment on the reports of Dr Wallace.
Mr Katz argued that, as the Medical Assessor had not made any deduction pursuant to s 323, which opinion was consistent with that of his qualified expert, Dr James Bodel, it could not be said that he had failed to consider whether the provisions of s 323 had been applicable. It followed, as we understood the argument, that there had also been a constructive consideration of Dr Wallace’s opinion, as the Medical Assessor had acknowledged Dr Wallace’s opinion that the respondent had “aggravated pre-existing degenerative cervical spondylosis.”
We were referred to the relevant legislation and to the often-cited authority of Cole v Wenaline Pty Ltd.[9] It was submitted there was no evidence on which to base a s 323 deduction. We were also referred to Ryder v Sundance Bakehouse[10] and D’Aleo v Ambulance Service of NSW.[11]
[9] [2010] NSWSC 78.
[10] [2015] NSWSC 526.
[11] [NSW] CA 12 December 1996 unreported.
It was submitted that in any event Dr Wallace did not articulate how the pre-existing condition contributed to the impairment caused by the subject injury, and that therefore no basis existed for a deduction.
In conclusion we were referred to Mahenthirarasa v State Rail Authority of New South Wales and Ors[12] and to Pitsonis v Registrar Workers Compensation Commission & Ors[13] in furtherance of a submission that no demonstrable error had been made.
[12] [2007] – no further citation was given.
[13] [2008]) – no further citation was given.
DISCUSSION
With regard to this remaining ground of appeal we acknowledge that Mr Katz’s advisors have said all that could possibly be said in explaining why the Panel could turn a blind eye to the Medical Assessor’s mistake in ignoring Dr Wallace’s reports. However we consider it more advisable to consider Dr Wallace’s reports for ourselves, as the dictates of natural justice and procedural fairness would not otherwise be served.
Dr Wallace’s report of 5 November 2022
Dr Wallace took a consistent history of Mr Katz’s injury and treatment. He had available investigations in the form of an MRI report of 19 August 2019, which demonstrated, relevantly, narrowing of the left neural exit foramina at C4/5 and C5/6 in respect of which the report noted possible irritation of the left C5 and C6 nerve roots respectively. At C6/7 there were bilateral facet joint degeneration and bilateral disc uncovertebral osteophytes complexes, larger on the left where there may have been focal irritation of the left C7 nerve root.
Also available was a CT scan dated 23 January 2020. This showed moderate facet joint osteoarthritis on the left side at C4/5, bilateral C5 foraminal narrowing, worse on the left, discovertebral and facet joint degenerative change at C5/6 with narrowing of the exit foramina bilaterally and discovertebral degenerative change and mild facet joint arthritis at the C6/7 level with narrowing of the C7 foraminal bilaterally.[14]
[14] Appeal pages page 182.
The only examination carried out by Dr Wallace occurred during the consultation on 4 November 2022. Dr Wallace noted that there was an intermittent tremor of the left arm and gave the dimensions he measured regarding the cervical range of movement, and stated that “neurological examination of [Mr Katz’s] upper limbs shows his reflexes are unable to be elicited” and that power and light touch sensation were intact.[15]
[15] Appeal papers page 183.
Dr Wallace noted that there was no past history of injury or episodes of pain at Mr Katz’s cervical spine prior to the subject injury.[16]
[16] Appeal papers page 179.
Dr Wallace later in his report made a deduction of 10% and stated:[17]
“Mr Katz had evidence of significant multilevel degenerative cervical spondylosis on MRI investigation carried out in August 2019, some 5 days post-injury. This condition would have been present for some years prior to the index work incident.
A proportion of his current cervical spinal disability is due to pre-existing multilevel degenerative cervical spondylosis.”
[17] Appeal pages page 186.
He also noted at page 12 of his report that Mr Katz had evidence of severe facet joint arthropathy at multiple levels in the cervical spine detected on 19 August 2019, but which “would have been present for some years prior to this investigation.”
As to the presence of radiculopathy, Dr Wallace said that “on clinical examination” there was no evidence of radiculopathy and that “at the time of the clinical examination” there was no evidence of left arm weakness.[18]
[18] Appeal papers page 187.
At page 14 of his report Dr Wallace advised that Mr Katz had not suffered a severe facet joint arthropathy but rather a musculoligamentous strain which had aggravated pre-existing multilevel degenerative cervical spondylosis.
At page 13 of his report, Dr Wallace was asked to give his opinion on the report of Dr James Bodel, with which it will be remembered the Medical Assessor agreed. Dr Wallace said:
“I have no comment on the assessment of Dr Bodel.”
Dr Wallace’s report of 24 April 2023
In this report Dr Wallace was asked to comment on some surveillance footage that had been forwarded to him. He advised that some footage was inconsistent with the range of movement demonstrated at presentation in November 2022, but that it was of not enough detail to confirm any change in his opinion regarding impairment.
Comment
Section 323 is in these terms, 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.”
It is well settled that the application of this section requires a consideration, firstly a determination of the level of impairment caused by the subject injury, secondly whether a proportion of that impairment was due to the pre-existing condition, and thirdly what that proportion was. That decision is not to be based on assumption or hypothesis.[19]
[19] Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [38]; Elcheikh v Diamond Formwork (NSW) PtyLtd [2013] NSWSC 365; Fire & Rescue NSW v Clinen [2013] NSWSC 609.
Dr Wallace’s hypothesis was based on his finding that the degenerative condition revealed by the MRI scan results of 19 August 2019 would have been present for some years prior to the subject injury. The difficulty with this logic was that it ignored the evidence that Mr Katz, then aged 56, had been asymptomatic. Whilst a deduction for a pre-existing asymptomatic condition can be made in some circumstances, is cannot be made where an alternative conclusion is presented by the evidence.[20] Dr Wallace did not consider the fact that Mr Katz had been able to perform his duties without any knowledge of his pre-existing condition until the subject injury. Dr Wallace did not consider how his hypothesis explained this fact. In Broadspectrum (Australia) Pty Ltd v Fiona Louise Wills[21] Harrison As J said at [65]:
“….It has also been noted that the simple presence of a pre-existing condition without more does not properly found a deduction under s 323 of the WIM Act: see El Cheikh at [87] and [91].”
[20] Vitaz v Westform (NSW) PTY Ltd [2011] NSWCA 254 at [43].
[21] [2018] NSWSC 1320.
We note that Dr Wallace based his hypothesis on no more than a simple presence of a pre-existing condition. We are therefore of the view that the Medical Assessor was correct not to make a deduction pursuant to s 323.
We also reject Dr Wallace’s opinion that Mr Katz was not suffering from any radiculopathy. The investigations, and particularly the MRI investigation and 19 August 2019 demonstrated potential irritation of the left C5, C6 and C7 nerve roots. Dr Wallace’s examination did not adequately test for the presence of the criteria required pursuant to Chapter 4.27 which we have discussed above. We note further that Dr Wallace limited his opinion to his “clinical examination,” and accordingly did not explain the findings on investigations.
Moreover, he declined to make any comment about Dr Bodel’s opinion which on 9 March 2022 diagnosed radiculopathy.[22]
[22] Appeal papers page 98.
Decision
For the reasons we have indicated above, the failure by the Medical Assessor to consider the reports of Dr Wallace due to an unfortunate oversight, is undoubtedly an error. However, having considered Dr Wallace’s reports, we find no error in the Medical Assessors final assessment. There is accordingly no need to revoke the MAC in the light of our findings as to Dr Wallace’s opinion.
For these reasons, the Appeal Panel has determined that the MAC issued on 11 September 2023 should be confirmed.
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