Redman v Protech Personnel Pty Ltd
[2022] NSWPICMP 458
•16 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Redman v Protech Personnel Pty Ltd [2022] NSWPICMP 458 |
| APPELLANT: | Mathew Redman |
| RESPONDENT: | Protech Personnel Pty Ltd |
| Appeal Panel | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| DATE OF DECISION: | 16 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Appeal against 1/10th deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) applied the wrong test; whether the MA’s reasons demonstrated his actual path of reasoning; Held – MA description of pre-existing condition as predisposing the appellant to further deterioration not the correct test; Cole v Wenaline considered and applied; MA took inadequate history of back injury and failed to give a diagnosis; path of reasoning not adequately set out; Western Sydney Local Health District v Chan and Wingfoot Australia Pty Ltd v Kocak applied; Medical Assessment Certificate revoked and 1/10th deduction rejected. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 July 2022 Mathew Redman, 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
6 June 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, 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.
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, reissued 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 April 2022 the delegate of the President referred this matter to the MA for an assessment of WPI caused by injury to the lumbar spine, left lower extremity and scarring (TEMSKI) on 11 May 2019.
Mr Redman was employed as a construction labourer and suffered an injury to his left foot on 11 May 2019 when a truck ran over it.
He suffered injury to his left foot below the ankle and was taken to Grafton Hospital.
The wound was severe and it was debrided and cleaned after which he was transferred to Coffs Harbour when he came under the care of Dr Matthew Broadhead, specialist orthopaedic surgeon.
On 23 May 2019 surgery was performed in the form of internal fixation of the first, second and third tarsometatarsal joints.
On 8 July 2020 the internal fixatures were removed leaving the joints fused.
The subject back injury was not mentioned in the history taken by the MA.
The MA found there to be 14% WPI, comprising 6% for the left lower extremity, 2% for scarring and 6% for the lumbar spine.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant did not seek to be re-examined by an MA who is a member of the Appeal Panel. As the issue concerned the application of s 323 of the 1998 Act, no re-examination was necessary.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that 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 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 ground of appeal was that the 1/10th deduction applied to the assessment for the lumbar spine pursuant to s 323 of the 1998 Act was erroneous.
The MAC
As indicated, the MA did not take a history of the injury to the back initially. His first mention was whilst he was noting Mr Redman’s present symptoms, when the MA said:
“He continues to have pain in his back.”[1]
[1] Appeal papers p 23.
The MA noted Mr Redman’s work history. He said:[2]
“Mr Redman worked in railway trackwork for about 14 years. He enjoyed this work.
More recently he was working as a machine operator and labourer for a labour hire company. He had only been there for about five months when this event occurred.”
[2] Appeal papers p 24.
On examination the MA said:[3]
“Back. Pain was located with associated tenderness at the upper and lower parts of the lumbar spine. The spinal curvatures were normal.”
[3] Appeal papers p 24.
The MA had available a CT scan of the lumbosacral spine dated 23 August 2019 which showed:[4]
“Right L5 pars inter-articularis defect. Minor facet joint degenerative changes in the lower segments.”
[4] Appeal papers p 25.
The MA gave a further history of the back condition in his summary when he said:[5]
“He advised that in this event he had fallen backwards and believes that that is where he hurt his back. Further investigation has demonstrated a pars inter-articularis defect at the L5/S1 articulation on the right.”
[5] Appeal papers p 25.
In the templated question at paragraph 8f of the MAC the MA confirmed that a proportion of the WPI was due to a pre-existing condition, about which he said:
“Attention is drawn to the right sided L5/S1 pars inter-articularis defect.”[6]
[6] Appeal papers p 26.
The MA said in explaining his calculations[7]:
“… Mr Redman continues to have dysfunction of his lumbar spine, although there is no radiculopathy. This places him into DRE Lumbar Category II, which provides a whole person impairment ranging between 5% and 8%, depending on the activities of daily living. For this he would attract a further 2%, giving 7%.”
[7] Appeal papers p 27.
In commenting on other opinions before him at [10c], the MA noted that Dr James Bodel for the appellant had made no deduction for the pars inter-articularis defect, whereas Dr Simon Kinney, who had been retained by the respondent, had applied a deduction of 1/10th for the previous pars inter-articularis defect.
With regard to the deduction, at [11] the MA said:
“As indicated, there has been a pre-existing pars interarticularis defect at the L5/S1 articulation. This would reasonably predispose Mr Redman to further lumbosacral deterioration. It is therefore appropriate to apply a one-tenth deduction.”
SUBMISSIONS
The appellant
The appellant submitted that the MA had erred in failing to correctly apply the provisions of
s 323 of the 1998 Act. It was submitted that the MA had failed to determine that the impairment caused by the subject injury had been contributed to by the pre-existing condition.It was also submitted that the MA had based his deduction on an assumption that was not supported in the evidence, namely that the pre-existing pars interarticularis contributed to the impairment caused by the subject injury. The appellant expanded his submissions by reference to the evidence.
The appellant also submitted that the MA had failed to give any or adequate reasons for the deduction.
The appellant referred to the current law regarding the application of s 323 of the 1998 Act. We address that in our reasons below and there is no good purpose in repeating it here.
The respondent
We note that the respondent misquoted paragraph 11 of the MAC. It submitted that the MA had said:
“As indicated, there has been a pre-existing pars interarticularis defect at the L5/S1 articulation. This would have reasonably predisposed Mr Redman to further lumbosacral deterioration. It is therefore appropriate to apply a one-tenth deduction.”
(Emphasis added).
As above, what the MA actually said was:
“As indicated, there has been a pre-existing pars interarticularis defect at the L5/S1 articulation. This would reasonably predispose Mr Redman to further lumbosacral deterioration. It is therefore appropriate to apply a one-tenth deduction.”
(Emphasis added)
The remaining submissions were predicated on the proposition that the pre-existing asymptomatic condition was relevant to the appellant’s current impairment, and that the MAC should be confirmed as the MA had used his clinical judgement. It was argued that there was no need for the MA to give any further reasons than those that were given in the MAC.
DISCUSSION
The alteration of the tense of verb “predispose” indicates a failure by the respondent, with respect, to engage with the essential ground of the appeal. Had the MA in fact said what the respondent alleged, then its subsequent submissions may have had more relevance, predicated as they were on the well settled proposition that previously asymptomatic conditions could nonetheless be the subject of a s 323 deduction.
The respondent submitted (at 2.11) that the MA found that the pars interarticularis “would have” predisposed the appellant to further lumbar degeneration. As indicated, he did not. He said that the condition “would reasonably” predispose the appellant to “further” deterioration. In framing his opinion in that way, the MA may have meant that the condition would cause deterioration in the future, notwithstanding his use of the term “further.” He did not advise that any prior deterioration (had that been his meaning) had caused any contributory impairment. In any event, whether a pre-existing condition could predispose a claimant to deterioration is not the correct test in applying the terms of s 323.
Section 323 provides 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 an MA is required to approach the application of s 323 by firstly identifying the pre-existing condition, then considering whether or not it caused any impairment and then, if it did, as to whether it contributed to the permanent impairment caused by the subject injury. We were referred to Cole v Wenaline Pty Ltd[8] regarding that approach, which confirmed the findings in a series of other cases.[9]
[8] [2010] NSWSC 78 at [29].
[9] D’Aelo v Ambulance Service (NSW) (1996-1997) 14 NSWCCR 139, Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh) and Ryder v Sundance Bakehouse [2015] NSWSC 526.
An interpretation that the MA was referring to future deterioration was available on the evidence, as Mr Redman had been employed in vigorous work for years and been asymptomatic. Whilst it is correct that an asymptomatic pre-existing condition can nonetheless contribute to the impairment caused by the subject injury, whether it does or not is dependent on the particular facts under consideration.
In this case Mr Redman had worked in railway trackwork for 14 years, prior to the four months of his employment with the respondent. This had been noted by the MA.
The subject injury was severe. A truck had run over his left foot, causing such damage that surgery was necessitated both to debride the extensive wound and on 23 May 2019 for internal fixation of the first, second and third tarso-metatarsal joints and also internal fixation of the second metatarsal.
We are grateful for the case references from both sides, which accurately reflect the applicable law. However, also relevant in this case is Western Sydney Local Health District v Chan[10] where at [13] Adams J found that an MA (“AMS” as they were then called) was bound, following the High Court authority of Wingfoot Australia Pty Ltd v Kocak, to set out in a statement of reasons the actual path of reasoning by which he arrived at his opinion.
[10] [2015] NSWSC p 1968.
It is in this respect that a demonstrable error has also been shown.
In the first place, the MA has not explained how it was that the pars interarticularis had actually pre-disposed the appellant to deterioration prior to the subject injury, if that was the purpose of his comment at [11]. The history the MA had taken was that the appellant had done over 14 years of railway trackwork, which we accept was arduous physical work, without any suggestion that he was aware that he carried a pars interarticularis. He stated that he did not suffer from lower back pain prior to the subject injury, and that he was then a regular gym goer.[11]
[11] Appellant’s statement 15 February 2022, appeal papers p 42 at [37].
The MA did not engage with this evidence. We find Mr Redman’s case to be similar to the facts of Elcheikh, where a similar deduction had been made for an asymptomatic condition where the applicant had been engaged in heavy work for many years. The assessment was overturned because, amongst other things, the AMS had not considered all the evidence, particularly that Mr Elcheikh had been able to work for many years without symptoms.
Further, the finding that the pre-existing condition was in fact no more than a pre-disposition begged the question as to whether it had caused any contribution to the impairment caused by the subject injury in any event. The MA made no attempt to explain his reasons for making a one tenth deduction, and those reasons he did give, as we have indicated, were ambiguous in any event.
Moreover, the subject injury was primarily concerned with Mr Redman’s foot and ankle. The MA did not take any history of the back injury when recording the circumstances of the injury, and simply made a casual reference to it when referring to the appellant’s present symptoms. His opinion as to causation was not given, as he recounted what the appellant thought had been the cause without comment. In the absence of any diagnosis, it is difficult to see how the pre-existing pars interarticularis had created any impairment, let alone whether it had contributed to the impairment caused by the subject injury.
Thus, the appeal is allowed; firstly because the MA erred in applying the wrong test in his consideration of the application of s 323, and secondly because his reasons for doing so were inadequate in any event.
For these reasons, the Appeal Panel has determined that the MAC issued on 6 June 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter Number: | W1498/22 |
Applicant: | Mathew Redman |
Respondent: | Protech Personnel Pty Ltd |
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 Dr Tim Anderson 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) |
| Lumbar spine | 11/05/19 | Chapter 4 | P 384 | 7% | Nil | 7% |
| Left lower extremity | 11/05/19 | Chapter 3 | P 537 | 6% | Nil | 6% |
| Scarring | 11/05/19 | Chapter 14 | 2% | Nil | 2% | |
| Total % WPI (the Combined Table values of all sub-totals) | 15% | |||||
0
5
0