Qantas Airways Ltd v Owers
[2025] NSWPICMP 85
•12 February 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Ltd v Owers [2025] NSWPICMP 85 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Angela Owers |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Mary Obele |
| DATE OF DECISION: | 12 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; employer appeal against assessment regarding respiratory and cardiovascular systems resulting from unsuccessful thoracic outlet syndrome surgery; whether Medical Assessor (MA) erred by finding maximum medical improvement (MMI); whether analogous assessment for asthma appropriate when lung function unaffected; whether section 323 deduction ought to have been made for asthma analogy; whether analogous assessment for cardiac arrhythmia appropriate for tachycardia symptoms; Held – MA answered affirmatively to templated question regarding MMI; his failure to consider expert opinion to contrary immaterial; Chapter 1.15-16 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guides) considered; MA under no obligation to opine on other reports; Wingfoot Australia Partners Pty Ltd v Kocak, and Campbelltown City Council v Vegan considered and applied; asthma analogy per Chapter 1.23 of the Guides not appropriate as lungs not affected by condition rather ability to breathe affected; pulmonary function disorder more appropriate analogy; section 323 accordingly of no application; arrythmia analogy appropriate to tachycardiac symptoms as both concerned with cardiovascular system; Held – Medical Assessment Certificate revoked to reflect substituted analogous condition for pulmonary function disorder. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 9 August 2024 Qantas Airways Limited, the appellant employer, lodged an Application to Appeal Against the Decision of the lead Medical Assessor Christopher Grainge, general physician, respiratory medicine. A second Medical Appeal Panel (MAP) was arranged in relation to the appeal by the appellant employer against the Medical Assessment Certificate (MAC) issued by the non-lead Medical Assessor, Robert Kuru, orthopaedic surgeon, which has been the subject of a separate Medical Appeal Panel Decision.
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
Ms Owers was employed as a flight attendant.
On 18 May 2019, whilst on an international flight from Sydney to Los Angeles, Ms Owers fell over a piece of luggage that had been left in the aisle. She twisted as she fell, hitting her right arm on one of the seats and landing on her left side impacting her shoulder, hip, knee, foot and her head impacted on the floor. She rested for a few hours and then completed her duties on the flight. She had neck soreness, left neck pain and discomfort. She had a 36-hour layover in Los Angeles and then returned to Sydney continuing to suffer shoulder and neck pain.
Symptoms continued in the right shoulder and left hip and in early 2020 due to right arm pain, right hand weakness and right neck and shoulder weakness, she was diagnosed with thoracic outlet syndrome.
A surgical procedure was performed on 17 June 2020, following which Ms Owers felt excessively breathless with right-sided chest pain as well as palpitations. There was a concern that she had suffered a pulmonary embolism and a CT pulmonary angiogram was performed which showed basal atelectasis only.
However her symptoms did not improve and on 30 June 2020 at Sutherland Hospital imaging of the diaphragm demonstrated that she had right diaphragmatic paralysis.
She was transferred to Royal North Shore Hospital and reviewed by a respiratory physician who confirmed that diagnosis.
Dr Grainge assessed a combined value of 71% WPI, which included the non-lead Medical Assessor’s opinion as to an 8% WPI for her orthopaedic and nerve injuries. This has since been confirmed on appeal, and the fresh certificate issued herein reflects the decision of that Medical Appeal Panel.
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 requested that Ms Owers be re-examined. However, although it has been necessary to revoke the MAC, the errors identified did not necessitate any further clinical examination, for the reasons given below.
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 appellant employer kindly summarised its grounds of appeal in eight topics. We propose to consider and rule on each topic seriatim. Ground A was directed at the MAC of the non-lead Medical Assessor Kuru, and was the subject of a separate MAC.
Ground B: maximum medical improvement
The MAC
Paragraph [8] of the MAC contains a number of templated questions, which were answered by the Medical Assessor, amongst which is the following:
“b) Have all body parts stabilised/reached maximum medical improvement?
Yes.
c) if not, please list those injuries not yet stable/at maximum medical improvement:
Not applicable
d) If stabilisation/maximum medical improvement of any or all injuries has not been reached, when in your opinion, will this occur?
Not applicable”
Submissions
Appellant employer
The appellate employer submitted that, as Ms Owers’ claim had been declined on the basis that she had not reached maximum medical improvement, there was a requirement for the Medical Assessor to “provide adequate reasoning” as to why he disagreed, and to “address all relevant matters” so that his reasoning process could be made out.
We were referred to Chapters 1.15 and 1.16 of the Guides, which set out the relevant criteria.
The appellate employer submitted that whilst the Medical Assessor had found that maximum medical improvement had been reached, there was no “path of reasoning” to explain why that was so. The appellate employer referred to the extensive medication Ms Owers has been prescribed and it referred to the opinion of Dr Herman whose view was that maximum medical improvement had not been reached. This was, Dr Herman said, because there were still medically viable treatments available, which the appellate employer then mentioned.
Professor Grainge had made no comment on Dr Herman's report or his opinion about maximum medical improvement, the appellant employer noted.
The appellate employer submitted that Professor Grainge “failed to consider the evidence” as well as failing to set out his reasoning process as to why he found that maximum medical improvement had occurred, and as to why the treatments suggested by Dr Herman had not been referred to.
The respondent
We were referred to the passages from Vegan which we have referred to above. Ms Owers acknowledged that the s 78 notices raised the issue of maximum medical improvement. This issue, she argued, was of a binary nature and accordingly capable of brevity of expression, as Ms Owers had either reached or not reached maximum medical improvement.
In any event it was submitted that Dr Herman's opinion had been considered and explained by Ms Owers herself in her statement. She said that the recommended medication of Ivabradine had not been recommended to her by any treating doctors, and that beta blocker therapy was not appropriate because she suffered from asthma.
There was ample evidence to support a finding of maximum medical improvement, particularly as Associate Professor Richard Haber had certified that Ms Owers’ condition had stabilised for the purposes of assessment.
Discussion
Chapter 1.15 and 1.16 of the Guides provides relevantly:
“1.15 Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the Respondent is unlikely to improve further and has attained maximum medical improvement. This is considered to occur when the worker’s condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.
1.16 If the medical assessor considers that the Respondent’s treatment has been inadequate and maximum medical improvement has not been achieved, the assessment should be deferred and comment made on the value of additional or different treatment and/or rehabilitation….”
The appellant employer correctly noted that the Medical Assessor had not referred to
Dr Herman’s report at all, and Ms Owers agreed that the issue of maximum medical improvement had been raised in the s 78 Notices. The only medical practitioner to raise the issue was Dr Herman. We do not however agree that these facts raised a demonstrable error.Firstly, it is not unusual for respondents, through their insurers, to raise issues within their dispute notices that are ultimately not relevant to the medical dispute a Medical Assessor is called upon to determine.
Dr Mark Herman, cardiologist, was retained by the respondent for the purposes of supplying a medico legal opinion, dated 14 April 2022.[1] His diagnosis was of similar to that of the Medical Assessor, namely:[2]
“Autonomic dysfunction following surgical release of the right thoracic outlet
complicated by phrenic nerve palsy.”
[1] Appeal papers page 756.
[2] Appeal papers page 759.
As to whether maximum medical improvement had been reached, Dr Herman said:[3]
“I do not believe the Claimant has reached maximal medical improvement.
She is not on Ivabradine which could reduce her pulse rate response to activity and may also respond to beta blocker therapy.”
[3] Appeal papers page 762.
A Medical Assessor is not obliged to refer to all the evidence before him. In Wingfoot Australia Partners Pty Ltd v Kocak[4] the High Court stated:
“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 to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
[4] [2013] HCA 43 (Wingfoot). This dicta applies to Medical Assessors: Sydney Local Health District v Chan [2015] NSW SC 1968 at [13].
We have referred to Vegan above with regard to the standard required of the reasons given. At [122] Basten JA, with whom Handley and McColl JJ A agreed, said:
“…to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment…. At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”
(Authority omitted).
As will be seen, the medical science in Ms Owers’ case has some controversial aspects, however we do not consider that whether Ms Owers had attained maximum medical improvement was one. A Medical Assessor is not required to refer to every report before him/her but, by virtue of the presumption of regularity that applies to the actions of a Medical Assessor, is presumed to have read the material before him/her.[5] The mere fact that the Medical Assessor failed to refer to Dr Herman’s report does not rebut that presumption. The Medical Assessor had at specifically been asked, at [8] of the MAC, to consider the question of maximum medical improvement, and it follows that in answering the templated questions as he did, he must have considered the question. The Medical Assessor’s failure to refer to Dr Herman’s report does no more than suggest that the Medical Assessor did not attach sufficient weight to it to warrant any comment.
[5] see Cottom v Scone Race Club Ltd [2022] NSWPIC 519 from [63].
Further, Ms Owers herself in her compendious statement of 17 October 2023 discussed
Dr Herman’s report. She said:[6]“… I wish to state that it was, and is, incorrect for Dr Herman to state… That I was, or am, considering Ivabradine as an additional rate controlling medication. This is not a medication which any treating doctor has recommended for me. I did discuss beta blocker therapy with my GP (Dr Torquill Duncan-Browne) but he told me this therapy was not appropriate because I suffer from asthma.”
[6] Appeal papers page 76.
The Panel would note that the advice of Dr Duncan-Browne was correct. Treatment for
Ms Owers’ condition by either Ivabradine or Beta blocker therapy is contraindicated. Beta blocker therapy is not appropriate to asthma sufferers, and Ivabradine is used with regard to sufferers of chronic heart failure. Ivabradine has no application in Ms Owers case, as she has no such condition, as will become apparent in these reasons. Dr Herman’s opinion did not overcome the fact that Ms Owers’ condition was well stabilised and did not change substantially in the year following Dr Herman’s report (2022), whether with or without medical treatment, thus complying with the terms of Chapter 1.15 of the Guides.Accordingly, this ground fails.
Ground C: analogous assessment – asthma
The MAC
On examination the Medical Assessor stated:[7]
“Ms Owers was 166cm tall, weighing 90kg.
There was no peripheral stigmata of respiratory disease. Chest expansion was reduced on the right side, percussion note was dull at the right base and there were decreased breath sounds at the right base.
Heart sounds were dual with no murmurs. JVP was not visible. There was no peripheral oedema but there was a significant tachycardia with the heart rate rising to 135 beats/minute walking 2m from the chair to the examination room couch.”
[7] Appeal papers page 30.
The effect of her condition on her activities of daily living were described by the Medical Assessor:[8]
“Ms Owers walks slower than her peers on the flat with maximum 2km at her own pace. She cannot walk and talk simultaneously. She cannot climb more than 1 flight of stairs without stopping. Bending over causes her to be breathless, for example gardening, and she is unable to swim because she is breathless.
Prior to the diaphragmatic palsy, Ms Owers was able to run 3km in 22 minutes and participated in cross country running at the weekends with her husband as well as going to the gym 2-3 times weekly and performing spin classes. She is no longer able to do any of these activities.
In addition to her breathlessness, she has a subjective rise in her heart rate on minimal exertion as well as facial flushing after food or on arbitrary occasions. She has new reflux disease. She has postural hypotension symptoms on standing, for example presyncope and light headedness. Since the diagnosis of diaphragmatic palsy, she has been diagnosed with hypertension and insulin resistance.”
[8] Appeal papers page 30.
The investigations before the Medical Assessor included an exercise stress cardiography which found:[9]
“10/11/2020: Exercise stress echocardiography: The echo at rest demonstrated normal left and right ventricular size and function with no left ventricular hypertrophy, trivial mitral and bicuspid regurgitation and normal pulmonary artery pressures. There was a documented exaggerated heart rate response to exercise with an exercise time of only 8 minutes with a peak heart rate of 181.”
[9] Appeal papers page 31.
In explaining his calculations, the Medical Assessor said:[10]
“The use of pulmonary function testing alone to determine whole person impairment is inappropriate in a case of diaphragmatic palsy as at rest and sitting the pulmonary function tests are near normal, however on exercise there is paradoxical movement of the diaphragm and a greater disruption to exercise capacity than would be expected from pulmonary function testing alone. As such, the assessment of whole person impairment cannot purely be based on the pulmonary function tests, rather on the degree of disability associated with breathlessness. Her respiratory compromise is best assessed by analogy with asthma, where she would present with similar exercise limitation if she had a postbronchodilator FEV1 of 50-59% predicted, a %change in FEV1 of 10-19%, and minimum medication of daily high dose inhaled steroids and one to three courses per year of oral steroids. Using table 5-9 in AMAS, her asthma score would therefore be 7, and using table 5-10 class 3 impairment and impairment of the whole person of between 26-50%. I would place her in the middle of that range at 38% impairment of the whole person. There is no adjustment for treatment.”
SUBMISSIONS
Appellant employer
[10] Appeal papers page 32.
The appellate employer referred to reports of Dr Goh and Dr Kwan, which noted that
Ms Owers had previously been diagnosed with adult-onset asthma prior to her injury.It was submitted that the Medical Assessor’s assessment of Ms Owers’ respiratory injury did not accurately consider that pre-existing condition.
It was submitted that therefore the Medical Assessor did not give adequate reasons as to why he used the analogous provision instead of assessing her as an adult-onset asthmatic.
The appellant employer submitted therefore the Medical Assessor erred as he made the analogous assessment “without proper considerations to the respondent's history”.
The respondent
The respondent replied that Professor Grainge's had given detailed reasons as to why
Ms Owers’ respiratory injury was analogous to asthma and we were referred to the findings by the Medical Assessor, who, it was submitted, had provided detailed reasons.The respondent submitted that it was entirely appropriate for the Medical Assessor to assess Ms Owers’ respiratory injury as analogous to asthma, given the provisions of Chapter 1.23 of the Guides.
Ms Owers submitted that the Medical Assessor had used his clinical judgement, which he was entitled to do, in finding that asthma was an analogous condition. Ms Owers submitted that the appellant employer's reference to adult-onset asthma was speculative, and there was no medical evidence to support the insurer’s hypothesis that her respiratory problems were due to anything but the work related accident. There was no report from any respiratory specialist and this issue had not been raised by the appellate employer in its dispute notices.
Discussion
Chapter 1.23 of the Guides provides:
"In situations where impairment ratings are not provided, these Guidelines suggest that medical practitioners use clinical judgement, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function and performing activities of daily living.”
It can be seen that the nature of Ms Owers’ injury does not affect the operation of the lung itself. The effect of her condition on her activities of daily living were described by the Medical Assessor and demonstrate that the problem is not with lung function per se, but rather
Ms Owers’ ability to fully utilise her lung function because of the effect of the diaphragmatic palsy, caused by injury to the phrenic nerve.This injury is unusual, and is unlisted in any of the guidelines. Accordingly, the provisions of Chapter 1.23 of the Guides may be invoked. Its provisions require that the unlisted condition be compared to “measurable impairment resulting from similar conditions with similar impairment of function and performing activities of daily living.” It cannot be said therefore, with respect, that a comparison with a respiratory condition (asthma) is a “similar condition” within that definition, as Ms Owers’ condition does not concern lung function per se.
The nature of the impairment (in effect, shortness of breath) might be more analogous with a cardiac problem, but we do not consider that as appropriate either, as Ms Owers has a normal heart with normal cardiac function, as illustrated by the exercise stress test echocardiography.
The most appropriate analogy is contained in table 5-12 of AMA 5,[11]
[11] AMA 5 page 107.
Pulmonary Function Test
57. Class 1
58. 0% Impairment
of the Whole Person
59. Class 2
10%-25% Impairment of the Whole Person
Class 3
26%-50% Impairment of the Whole Person
Class 4
51%-100% Impairment of the Whole Person
FVC
60. Measured FVC ≥ lower limit of normal (see
Tables 5-2b and 5-3b) and
≥60% of predicted and
< lower limit of normal
or
≥51% and ≤59% of predicted
or
61. ≤50% of predicted
or
FEV1
Measured FEV1≥ lower limit of normal (see Tables 5-4b and 5-5b) and
≥60% of predicted and
< lower limit of normal
or
≥41% and ≤ 59% of predicted
or
62. ≤40% of predicted
or
FEV1/FVC
FEV1/FVC ≥ lower limit of normal and
DCO
DCO ≥ lower limit of normal (see Tables 5-6b and 5-7b) or
63. ≥60% of predicted and
64. < lower limit of normal
or
≥41% and ≤59% of predicted
or
65. ≤40% of predicted
or
V˙O2max
66. V˙O2max 2≥5 mL/(kg•min)
67. or
> 7.1 METS
≥ 20 and < 25 mL/(kg•min)
or
5.7-7.1 METS
15 and < 20 mL/(kg•min)
or
4.3 to < 5.7 METS
< 15 mL/(kg•min)
or
< 1.05 L/min
or
< 4.3 METS
Table 5-12 Impairment Classification for Respiratory Disorders, Using Pulmonary Function and Exercise Test Results*
The table provides four classes of impairment for respiratory disorders, which is a more appropriate description of Ms Owers’ injury. Class 2 provides for an assessment of 10-25% WPI where greater than or equal to 60% of the predicted lung volumes and less than the lower limit of normal is found.
The evidence indicates an impairment to the higher range of class 2 and we would therefore find that the respiratory findings of 38% by the Medical Assessor should be revoked. A 25% WPI is substituted therefore.
Ground D: deduction pursuant to s 323 of the 1998 Act for asthma
This ground is related to ground B, which we have just discussed, and its substratum falls away, as we have found that the Medical Assessor erred in making the analogy to asthma.
Ground E: incorrect assessment as cardiac arrythmia
Ground F: Assessing the respondent’s tachycardia without reference to her resting heart rate or alternate causes of tachycardia
These two submissions involve the same issues.
The MAC
The Medical Assessor said:[12]
“Regarding the tachycardia, the excessive tachycardic response which Ms Owers suffers now can be best judged by analogy to cardiac arrhythmias as she has a sinus tachycardia at rest and excessive heart rate response to exercise which went up to over 150 beats/minute on only 90 seconds of a Bruce protocol. Walking only a few metres from chair to bed at the consultation today lead to a marked tachycardic response.
Based on AMA-5, paragraph 3.7 on page 56, Table 3-11, she is in NYHA functional class Ill, and hence Class 4 impairment of the whole person according to that Table. I would place her at the lower range of functional class Ill impairment, hence the assessment of 50% whole person impairment.”
Submissions
[12] Appeal papers page 33.
The appellant employer firstly argued that the Medical Assessor had made an inappropriate, analogous impairment with regard to Ms Owers’ tachycardia.
The appellant employer submitted that the Medical Assessor used “cardiac arrythmia” as a proxy, having stated that Ms Owers had a sinus tachycardia, at rest and excessive heart rate response to exercise. The appellant employer asserted that arrythmia was causative of “fainting, weakness, fatigue, dizziness, chest heaviness and shortness of breath”. It was submitted that the only evidence of those symptoms was “a subjective account of the [Ms Owers’] heart rate increase” and “facial flushing”.
It was submitted that the Medical Assessor had already accounted for Ms Owers’ difficulty in his assessment of her respiratory system by using the analogy to asthma.
It was submitted that without there being a specific diagnosis of cardiac arrhythmia, the choice to assess Ms Owers against this criterion was, “a poor fit and overlaps with previous symptoms associated with the respiratory condition.” It was submitted that there was no appropriate reasoning as to why Ms Owers’ tachycardia was assessed as cardiac arrhythmia and it was submitted that by doing so the Medical Assessor had made a demonstrable error.
Secondly, the appellant employer submitted that although the Medical Assessor reported that at rest Ms Owers had a sinus tachycardia, he had fallen into error by failing to record her resting heart rate. The Medical Assessor, it was argued, had accordingly failed to provide a path of reasoning as to why the elevated heart rate after walking 2m was associated with
Ms Owers’ cardiac condition “rather than associated with depression and anxiety”.We were referred to “Allied Health Recovery Request of 20 May 2024” which apparently recorded a low mood associated with depression and anxiety. We note this document was not before the Medical Assessor, nor before us, and this submission is accordingly unsupported by that document. The import of the appellant employer’s argument was to bolster its contention that the Medical Assessor failed to give adequate reasons by not explaining why Ms Owers’ condition had not been caused or contributed to by her psychological state.
The respondent
Ms Owers again submitted that Chapter 1.23 of the Guides empowered the Medical Assessor to assess measurable impairment resulting from an analogous condition. The Medical Assessor had exercised his clinical judgement in making his analogy, which had been precisely the same methodology adopted by Professor Richard Haber in his medico-legal report dated 26 November 2021.[13] It was submitted that Dr Herman, in his report of
14 April 2022 for the respondent, did not raise any argument to dispute the appropriateness of using the analogous condition.[13] ARD page 2.
It was not mandatory for Ms Owers to exhibit all the symptoms of cardiac arrhythmia, given that the Medical Assessor did not actually diagnose that condition, it was submitted. Rather, he diagnosed sinus tachycardia. Further, Ms Owers submitted that, apart from the heart rate increase and facial flushing referred to by the appellant employer, the Medical Assessor also noted Ms Owers’ breathlessness, decreased breath sounds at the right base, reduced chest expansion and significant tachycardia with her heart rate rising to 135 bpm after walking just 2m from the chair to the examination room couch.
Secondly, the respondent argued that there was no requirement in Chapter 3.7 of AMA 5 that required the resting heart rate be recorded. In any event, Ms Owers argued that she exhibited marked signs of tachycardia response after walking only a few meters from the chair to the bed, which was strongly suggestive of there being a difference between the resting heart rate and the excessive heart rate in response to exercise.
Ms Owers also responded to the employer's argument about the relevance of anxiety by submitting that it was “only necessary for the Medical Assessor to respond to any clearly articulated substantial argument raised by either party”. Ms Owers observed that the question of anxiety was only raised in the context of the Allied Health Recovery Request. The submission was essentially speculative and made without any medical support, it was argued.
Discussion
As noted earlier in considering the analogy with asthma, Ms Owers does not have arrhythmia, which is defined at Chapter 3.7 of AMA 5:[14]
“An arrythmia is one or more heartbeats generated at a site other than the sinus node. An impulse generated in the sinus node but not transmitted normally through the conducting system is a conduction defect, arrhythmia. Arrhythmias may occur in individuals with structurally and functionally normal hearts or in those with any type of organic heart disease.”
[14] At page 56.
We concur with the Medical Assessor that the analogy of cardiac arrythmia to Ms Owers’ sinus tachycardia was the best fit. Ms Ower did not have arrhythmia as defined, and neither does she have an abnormal heart. Her cardiac injury is simply her excessive heart rate response to exercise as we have noted above. We confirm that the analogy in this instance is appropriate as, to use the terminology of Chapter 1.23, Ms Owers’ condition does not have an impairment rating provided but there is a measurable impairment arising from a similar condition. That similar condition is a marked tachycardic response which is measurable in clinical conditions and in the performance of activities of daily living, as was illustrated in the Medical Assessor’s examination.
The analogy is within the appropriate body region, that is to say the cardiovascular system. We find the analogy to be quite reasonable and confirm the assessment of 50% WPI.
However, we find that the submission regarding Ms Owers’ anxiey has some weight.
Ms Owers was not quite correct in stating that there was no medical support regarding the question of anxiety, once the Allied Health Recovery request was put aside.In the report from Dr Robert Smith, consultant cardiologist dated 6November 2020 to
Ms Owers’ GP, he said:[15]“…. Fourthly anxiety is an ongoing problem related to her underlying injury, and I have told her that regular exercise will help with this, and perhaps psychotherapy and counselling to help of a post-traumatic stress disorder would be useful. I have told her at this stage to avoid benzodiazepines to deal with the anxiety…”
[15] Appeal papers page 157.
A report to Ms Owers’ general practitioner from the “sleep and breathing specialist”[16]
Dr Siram Mahadev noted that Ms Owers had “…. considerable symptomatology at that time (on learning her condition) including a discomfort on the right side of her chest, significant breathlessness, significant palpitations which caused distress and breathlessness and a significant sense of anxiety and doom regarding these symptoms.”[16] Appeal papers 236 at 237.
On 23 April 2021, Dr Chan, endocrinologist and consultant physician wrote to Ms Owers' GP, noting that while she was struggling with her condition, she was also “depressed and anxious.”
Whilst we recognise that her anxiety may well have been caused by the fear that her condition engendered, nonetheless that anxiety probably has contributed to her condition. Understandably, the symptoms would well give rise to an additional anxiety, but an exact determination of its extent would be difficult to determine in these circumstances. Accordingly the statutory assumption provided by s 323(2) is applicable and 1/10th of that assessment should be deducted.
Ground G: No path of reason as to why the respiratory and cardiac response measured were different
The appellant employer acknowledged that the Medical Assessor was qualified to assess the respiratory system, but it was submitted that he was not a recognised expert regarding cardiac impairment. Having said that, the appellant employer stated that it “does not make any submission as to the [Medical Assessor’s] ability to assess cardiac impairment…”
The appellant employer repeated that the Medical Assessor had made a demonstrable error and applied incorrect criteria as argued in grounds E and F (the challenge to the analogous condition of arrythmia made by the Medical Assessor).
The appellant employer submitted that no diagnosis had been made of a cardiac condition by the Medical Assessor, but he had rather identified a symptom, tachycardia.
It was again argued that the Medical Assessor had not set out a clear path of reasoning as to how there was any impairment of the heart as a result of the right shoulder injury.
The appellant employer then submitted “more particularly” that the Medical Assessor did not explain how the elevated heart rate was not associated with impairment of the respiratory function. It was submitted that the cardiac assessment was based on a symptom associated with impairment of respiratory function and thus effectively constituted double counting of the impairment.
Respondent
Ms Owers pointed out that the appellant employer had never disputed that the worker’s cardiac problems were due to the injuries caused to the right shoulder by the accident or “at least the surgery of 17 June 2020.” Ms Owers said that Dr Herman accepted that the impairment in the heart was related to the shoulder injury. No question of causation of the cardiac condition had been raised in the dispute notices issued by the appellant employer. There was therefore no reason for the Medical Assessor to provide a detailed path of reasoning as to the causation of the cardiac condition diagnosis. The link between the cardiac condition and the right shoulder injury was not controversial and no causation argument had been made by the appellate insurer.
Ms Owers also noted the allegation of double counting of impairment. This again was an issue that had not hitherto been raised by the insurer nor its expert. In any event the excessive tachycardia was found to be related directly to Ms Owers’ cardiac condition rather than the breathlessness which related to how her lungs were functioning.
Discussion
This argument may also be dismissed. It sought to raise issues that had not been hitherto raised and for which there was no medical support. We were not referred specifically to any passages of any expert's report by the appellant employer, and the submission appeared to be based on a misapprehension of the pathology involved. The breathless did indeed relate to Ms Owers’ unusual breathing condition, for which impairment ratings were not provided in the Guides, and in respect of which we have found that the proper analogy is with pulmonary function. The analogy regarding the cardiac condition is a separate application of Chapter 1.23 and there is no limitation on how often an analogous assessment may be used.
Ms Owers’ case is an illustration of how such analogies were required to fairly assess the unfortunate results of her thoracic outlet surgery.There was no reason for the Medical Assessor to deal with the causation issue regarding the link between the right shoulder injury and the injury to the cardio-vascular system. It was accepted that Ms Owers’ serious conditions arose because the thoracic outlet surgery, which was treatment for the shoulder injury, was unfortunately unsuccessful.
Ground H: incorrect calculation of WPI
The appellant employer submitted that the calculation of 71% WPI was done in his capacity as lead Medical Assessor, also combining Medical Assessor Kuru's assessment for the cervical spine. It was submitted that the combined value chart in fact yielded an amount of 72% WPI and not the 71% certified by the Medical Assessor.
Respondent
The respondent agreed there had been a mathematical error and that the certified figure should have been 72%. This however was an obvious error that could be remedied pursuant to s 325(3) of the 1998 Act.
Ms Owers submitted that this was a mere slip and not something that should properly be part of the medical appeal as no medical expertise was required.
Discussion
This ground is no longer relevant, as Ms Owers’ entitlement has been recalculated in accordance with our findings.
For these reasons, the Appeal Panel has determined that the MAC issued on 12 July 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W9221/23 |
Applicant: | Qantas Airways Limited |
Respondent: | Angela Owers |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Robert Kuru and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Respiratory | 18/5/2019 | Chapter 8 | Chapter 5 | 25% | 25% | |
| Cardiovascular | 18/5/2019 | Chapter 15 | Chapter 3.7, Tabe 3-11 | 50% | 1/10th | 45% |
| Cervical spine | 6% | 6% | ||||
| Right upper extremity | 2% | 2% | ||||
| Nervous system | 0% | 0% | ||||
| Total % WPI (the Combined Table values of all sub-totals) | 62% | |||||
0
3
0