Qantas Airways Ltd v Owers
[2025] NSWPICMP 28
•13 January 2025
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Qantas Airways Ltd v Owers [2025] NSWPICMP 28 |
| APPELLANT: | Qantas Airways Limited |
| RESPONDENT: | Angela Owers |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 13 January 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Employer appeal against 8% whole person impairment (WPI), being the non-lead Medical Assessor (MA) concerned with injury to the claimant’s cervical spine, scarring and nervous system; whether the MA was obliged to identify the documents which established injury to the cervical spine; whether the MA should have explained whether asymmetry of motion was associated with a right shoulder injury; Held – appeal misconceived and brought with an eye too keenly attuned to the perception of error; Skates v Hills Industries applied; Bojko v ICM Property Services Pty Ltd referred to. |
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 non-lead Assessor Dr Robert Kuru, orthopaedic surgeon (the Medical Assessor). A second Medical Appeal Panel has been arranged in relation to the appeal by the appellant employer against the Medical Assessment Certificate (MAC) issued by Professor Christopher Grainge, Respiratory Physician, which will be the subject of a separate Medical Appeal Panel Decision. Both MACs were issued on 12 July 2024.
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 ow8n 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 30 May 2024 an amended referral was made to the Medical Assessor to assess impairment to the cervical spine, right upper extremity and the nervous system.
Ms Owers (the respondent) 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, and foot. 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 pain.
Symptoms continued in the right shoulder and left hip but by 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, which left Ms Owers feeling excessively breathless with right-sided chest pain as well as experiencing palpitations. There was a concern that she had suffered a pulmonary embolism and a CT pulmonary angiogram was performed, which showed basal atelectasis only.
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 Kuru assessed a combined value WPI of 8%, comprising of 6% for the cervical spine, 2% for the right upper extremity, and 0% for the nervous system.
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, but was unable to establish error on the part of the Medical Assessor. No re-examination was therefore required.
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 MAC
The Medical Assessor used the term “documented injury” on one occasion, at page 6 of the MAC:
“With respect to the report by Dr Hope dated 22/11/2021, I agree with the assessment of the cervical spine as DRE Cervical Category II but have assessed 1% rather than 2% for restrictions of activities of daily living. I have not assessed deduction for pre-existing injury.
For the right shoulder, I found significantly greater range of motion and hence have assessed a lesser impairment for it. Dr Hope has not assessed for neurological deficit.
With respect to the report by Dr Brew dated 18/10/2022, I am in agreement that impairment is not assessable for the nervous system. I agree with the assessment of 6% whole person impairment for the cervical spine.
With respect to the report by Dr Miniter dated 31/05/2022, I have assessed impairment of the cervical spine on the basis of there being asymmetrical range of motion and a documented injury.
With respect to the report by Dr Mellick dated 03/02/2023, I am in agreement that there is 0% impairment for the nervous system.”
(Emphasis added.)
SUBMISSIONS
Appellant employer
The appellant employer submitted that Dr Kuru fell into error by using the expression “documented injury”. It was submitted that Dr Kuru did not set out the identity of the “documented injury” and did not diagnose the injury to the cervical spine other than stating that she had “neck pain”.
The appellant employer submitted that there was no muscle guarding, no clear history of injury and that the MRI scan investigation had been normal. Dr Kuru had therefore erred in in assessing any impairment for the cervical spine, it was submitted.
The appellant employer conceded that Dr Kuru recorded asymmetry of movement, but submitted that as it related to rotation to the right, which was “towards the right shoulder injury,” Dr Kuru had erred by not commenting on whether the asymmetry was associated with the right shoulder injury.
We referred to Vegan as authority for the proposition that Dr Kuru had not given adequate reasons because the appellant employer submitted that there were thus two conclusions open at the time. It was submitted that Dr Kuru needed to distinguish between the right shoulder injury and neck symptoms in order to justify his assessment based on asymmetry of movement.
The respondent claimant
Ms Owers submitted that it was not necessary to define what the “documented injury” was. There was no need for Dr Kuru to specifically refer to it as it had been accepted by the appellant employer and accordingly there was no issue as to whether there had been a neck injury. Ms Owers observed that the appellant employer’s own medical specialist Dr Ross Mellick had not disputed that Ms Owers had suffered a soft tissue injury to her neck, but rather stated that there had been no neurological injury.
Discussion
This appeal may be shortly dealt with. The terms of the referral named the cervical spine as one of the parts of the anatomy to be assessed. The effect of this was that liability for injury and potential subsequent impairment to the cervical spine had been admitted.[1]
[1] Skates v Hills Industries [2021] NSWCA 142.
The “documented injury” was clear from all the documents that were before the Medical Assessor. The medical reports referred to injury to the cervical spine and the only issue was whether the Medical Assessor had failed to apply correct criteria or made a demonstrable error in assessing the impairment caused by the injury. We note that the term “documented injury” was used in passing when the Medical Assessor was explaining why he had assessed impairment of the cervical spine when Dr Miniter had not. It did not hold any significance in context and appears to have been cherry picked with “an eye too keenly attuned to the perception of error.”[2]
[2] Bojko v ICM Property Services Pty Ltd [2009] NSWCA 175 at [36].
Chapter 4 of the Guides provides for the assessment of the cervical spine by adopting the criteria set up in Chapter 15.6 of AMA 5.[3] Chapter 4 provides relevantly:
“AMA5 Chapter 15 (p 373) applies to the assessment of permanent impairment of the spine, subject to the modifications set out below….
4.1 The spine is discussed in Chapter 15 of AMA5 (pp 373–431). That chapter presents two methods of assessment, the diagnosis-related estimates method and the range of motion method. Evaluation of
impairment of the spine is only to be done using diagnosis-related estimates (DREs).”
[3] AMA 5 page 392.
Table 15-5 in Chapter 15 of AMA 5 provides:
DRE Cervical Category I 0% Impairment of the Whole Person
DRE Cervical Category II 5%-8% Impairment of the Whole Person
DRE Cervical Category III 15%-18% Impairment of the Whole Person
DRE Cervical Category IV 25%-28% Impairment of the Whole Person
DRE Cervical Category V 35%-38% Impairment of the Whole Person
No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity, and no other indication of impairment related to injury or illness; no fractures
Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or non-verifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity
or
individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment
or
fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture with- out dislocation that has healed without loss of structural integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement
Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss of relevant reflex(es), loss of muscle strength, or unilateral atrophy com- pared with the unaffected side, measured at the same distance above or below the elbow; the neurologic impairment may be verified by electrodiagnostic findings
or
individual had clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disk at the level and on the side expected from objective clinical findings with radiculopathy or with improvement of radiculopathy following surgery
or
fractures: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture with dis- placement disrupting the spinal canal; in both cases the fracture is healed with- out loss of structural integrity; radiculopathy may or may not be present; differentiation from congenital and develop- mental conditions may be accomplished, if possible, by examining preinjury roentgenograms or a bone scan performed after the onset of the condition
Alteration of motion segment integrity or bilateral or multilevel radiculopathy; alteration of motion segment integrity is defined from flexion and extension radiographs as at least 3.5 mm of translation of one vertebra on another, or angular motion of more than 11° greater than at each adjacent level (Figures 15-3a and 15-3b); alternatively, the individual may have loss of motion of a motion segment due to a developmental fusion or successful or unsuccessful attempt at surgical arthrodesis; radiculopathy as defined in cervical cate- gory III need not be present if there is alteration of motion segment integrity
or
fractures: (1) more than 50% compression of one vertebral body without residual neural compromise
Significant upper extremity impairment requiring the use of upper extremity external functional or adaptive device(s); there may be total neurologic loss at a single level or severe, multilevel neuro- logic dysfunction
or
fractures: structural com- promise of the spinal canal is present with severe upper extremity motor and sensory deficits but with- out lower extremity involvement
An assessment of 5-8% is available if the Medical Assessor finds, amongst other things, an “asymmetric loss of range of motion.” The Medical Assessor’s reasons were given at [11b] of the MAC:
“Cervical spine is assessed according to AMA-5, page 392, Table 15-5 as DRE Cervical Category II on the basis of there being dysmetria and restricted range of motion (5% whole person impairment). According to SIRA, page 28, paragraph 4.34 an extra 1% is added for restriction of activities of daily living, giving 6% whole person impairment.”
The appellant employer cited no authority, nor did it refer to any medical evidence, to substantiate its submission that the site of any other injury was relevant to the application of Table 15-5 – particularly an asymmetric loss of range of motion. The terms of the table clearly state otherwise, and this submission is misconceived and rejected.
For these reasons, the Appeal Panel has determined that the non-lead MAC issued on 12 July 2024 should be confirmed.
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