Remondis Australia Pty Ltd v Griffiths
[2024] NSWPICMP 650
•12 September 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Remondis Australia Pty Ltd v Griffiths [2024] NSWPICMP 650 |
| APPELLANT: | Remondis Australia Pty Ltd |
| RESPONDENT: | Jeff Griffiths |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 12 September 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; section 323; Medical Assessor made no deduction; worker had previous history of back pain including fusion; pre-existing condition asymptomatic at time of work injury but had been symptomatic at various times for many years; scarring claimed but not referred for assessment; Cole v Wenaline Pty Ltd, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq), and Ryder v Sundance Bakehouse considered; Vitaz v Westform (NSW) Pty Limited applied; Held – Medical Assessment Certificate revoked; deduction made; commentary as to scarring. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 July 2024, Remondis Australia Pty Ltd (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 June 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 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Jeff Griffiths (the respondent) was employed by the appellant as a truck driver, but apparently as part of that role he attended to other duties. On the day of the injury in question, he was asked to clean out some drainage pits at work, requiring the lifting of a heavy metal grate. He noticed a twinge in his low back, which developed into pain over the next few days. Mr Griffiths eventually required surgery, being a laminectomy and neurolysis at L4/5 and L5/S1. This resulted in some improvement, although he has gradually developed further symptoms.
The above work-related injury is on the background of a significant history of back issues, dating back to 1989. A major incident occurred in 1997, when he was lifting bags in a factory. Symptoms of radicular pain were, at that time, on the left side. After initial conservative treatment, Mr Griffiths saw Dr New, who performed an L5/S1 posterior pedicle fusion. Mr Griffiths had some ongoing discomfort down the left leg following that surgery, requiring nerve conduction studies in 2012. At the time of the medical assessment, Mr Griffiths presented with symptoms in the right leg.
Mr Griffiths brought a claim for lump sum compensation to the Personal Injury Commission (Commission) as a result of the injury suffered on 19 May 2021, claiming 28% whole person impairment. The respondent’s medical expert assessed 14% whole person impairment.
On assessment, the Medical Assessor assessed 16% whole person impairment. He did not make a deduction for previous injury, pre-existing condition or abnormality. The appellant (respondent employer in the substantive proceedings) appeals against that assessment, challenging the Medical Assessor’s application of s 323 of the 1998 Act.
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 there was sufficient information contained in the material before the Appeal Panel to determine the issues in dispute. During the course of the Appeal Panel’s review, an additional matter was identified which will be discussed below, following resolution of the issue in dispute.
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. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that a proportion of the impairment is due to the worker’s pre-existing lumbar spine condition. The appellant points to the prior lumbar condition and surgery in 1998, submitting that it actually contributed to the current impairment, meaning s 323 of the 1998 Act is engaged. The appellant refers to the Medical Assessor’s conclusion that “the current injury is not contributed to by his previous back problem so therefore no deduction would be appropriate”, submitting that the previous back condition contributed not to the subject injury, but did contribute to the worker’s current impairment. The appellant submits that the Medical Assessor has not explained his conclusion.
The respondent submits that the Medical Assessor has acted within his scope in determining the respondent’s injuries. The reasons provided need not be extensive or provide a detailed explanation of the criteria applied. The respondent then sets out the relevant reasons, noting that the Medical Assessor confirmed that he had reviewed the specific documentation relating to the previous injuries. The Medical Assessor confirmed that this is a new injury and not an aggravation of his previous injury, therefore rightly confirming that a deduction is not appropriate. The appellant refers to Cole v Wenaline [2010] NSWSC 70. The Medical Assessor correctly distinguished the left and right pathology, allowing him to establish that the 19 May 2021 injury was to the right side of the lumbar spine, where the 1997 injury was to the left.
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. The appeal concerns the application of s 323 of the 1998 Act and accordingly the Appeal Panel’s consideration of the matter is limited to that issue (per Basten JA in Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 at [26]):
“Secondly, s 328(2) requires that the review ‘is limited to the grounds of appeal on which the appeal is made.’ Because the gateway function of the Registrar is satisfied if ‘at least one of the grounds’ has been made out, it appears that the Appeal Panel is not limited to the ground held by the Registrar to have been made out, but may consider all grounds of appeal raised in the appellant’s application. On the other hand, it is clear that the Appeal Panel is not permitted to look for errors which are not part of 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 issue on appeal solely concerns the Medical Assessor’s application of s 323 of the 1998 Act. That section is the “deduction” section of the legislation and provides:
“(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.
Note—
So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The Medical Assessor made no deduction pursuant to s 323. The appellant submits that he should have made one, although does not suggest what the extent of that deduction should be. It is noted that there is competing medical opinion in relation to this question, with the respondent worker’s independent medical expert having made no deduction, whilst the appellant’s expert made a deduction of 1/10th. Any deduction would reduce the respondent’s whole person impairment below the relevant threshold for work injury damages of 15%.
Section 323 has been the subject of significant judicial scrutiny over the years. The parties have referred to a number of relevant authorities on point. Cole is the oft-cited authority establishing what steps must be taken in determining whether a deduction should be made pursuant to s 323. This was followed by Elcheikh v Diamond Formwork (NSW) Pty Ltd (in Liq) [2013] NSWSC 365 (Elcheikh) (both decisions of Schmidt J) which provides a three step test. The first is to determine the extent of impairment following the work injury. The second is to determine whether a proportion of that impairment is due to a previous injury, or pre-existing condition or abnormality. The final step is to determine the extent or proportion of that contribution.
Justice Campbell, in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) summarises the application of the section:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.” (at [54])
The appellant points to Vitaz v Westform (NSW) Pty Limited [2011] NSWCA 254 (Vitaz), which provides that a deduction is required even if the pre-existing condition factor is asymptomatic prior to the injury.
The Appeal Panel, applying the above relevant authorities, are satisfied that the Medical Assessor has erred in his application of s 323 of the 1998 Act.
The Medical Assessor takes an extensive history of previous issues in the lumbar spine dating back to 1989, but in particular the injury in 1997 that resulted in surgery being performed on 3 April 1998, being a L5/S1 posterior pedicle fusion. He also notes some ongoing discomfort down the left leg that appears in the documentation, including nerve conduction studies. In spite of this, Mr Griffiths was able to complete the normal duties of a truck driver until the present injury.
The factors that the Medical Assessor took into account in reaching his conclusion were said to be:
“- The history I obtained about his current symptoms compared to his symptoms in 1997 and 1998.
- My history I obtained, and the documentation reviewed concerning his previous left sided radiculopathy compared to his current right sided radiculopathy.
- My physical examination findings today.”
The Medical Assessor then goes on to apply the relevant parts of the Guidelines and AMA 5 to determine the existing level of impairment (thereby correctly applying step one of the test set out in Cole and Elcheikh). He opines:
“I noted that he has had surgery for his current injury with an L4/5 and L5/S1 right sided foraminotomy. I noted that his symptomatology is on the opposite to that, which he had in 1997, 1998 with some recurrence around 2012. His previous fusion at L5/S1 was carried out for a left sided radiculopathy. I believe that his current injury is giving him a right sided radiculopathy and is a separate frank injury to the one he sustained back in 1997.
…
As I believe this is a new injury and not an aggravation of his previous injury at L5/S1, I do not believe that any deduction is appropriate.”
The Medical Assessor goes on to consider the other opinions contained in the material. He provides:
“I note that his previous back injury in 1997 with surgery in 1998 involved a fusion at L5/S1 and left sided radiculopathy. I believe that his current injury is not contributed to by his previous back problem so therefore no deduction would be appropriate.”
Here specifically the Medical Assessor has asked himself the wrong question. Section 323 does not require consideration of whether any previous injury, or pre-existing condition or abnormality has contributed to the current injury, but rather whether it contributes to the current degree of permanent impairment. There is an important distinction there. The current injury is to the same body parts previously injured. It is a frank or personal injury, which occurred when the applicant was lifting something far in excess of a safe weight. It may well be that the previous injury which resulted in a fusion has not contributed to the injury occurring on 19 May 2021, as postulated by the Medical Assessor. That was not the issue in question. The issue in question, per Ryder, is has that previous injury made the impairment worse.
A previous injury (lifting incident in 1997), has resulted in a pre-existing condition or abnormality in the respondent worker’s spine (a fusion at L5/S1). It is noted that the present injury occurred at the same level of the spine, but additionally involved the L4/5 level.
It is acknowledged that the Medical Assessor has identified that the symptomatology the respondent presented with prior to and post the work injury was different. The previous injury in 1997 resulted in left sided radicular symptoms. The injury in issue in these proceedings involves right sided radicular symptoms.
That does not answer the question of whether the previous injury contributes to the current degree of permanent impairment. Symptomatic presentation is not irrelevant, but is not the sole criterion on which a Medical Assessor should consider contribution. Vitaz makes it clear that an asymptomatic pre-existing condition can contribute to current impairment. There is no reason why a differently symptomatic pre-existing condition would not be able to contribute to current impairment.
In present circumstances, there is evidence of two pre-existing conditions contributing to the current degree of impairment. The first is that Mr Griffith’s spine could not be said to have been normal prior to the lifting incident in 1997. There is evidence of back pain as far back as 1989, treated conservatively. The second is the lifting incident in 1997 and sequalae thereafter.
According to Cole, one cannot assume that in every case where an earlier injury to the spine has occurred, it has contributed to current impairment (see [36]). When considering s 323, the factual circumstances of the case must be considered and in each case the outcome may be different.
The factual circumstances in the current case that take the matter outside of the circumstances in Cole (i.e. moving beyond an assumption or hypothesis) are:
(a) Mr Griffith’s spine was symptomatic after the 1998 fusion surgery. He had ongoing complaints of discomfort in the spine and had nerve conduction studies carried out in 2012;
(b) the disc damage from the injury on 19 May 2021 involves an additional level (L4/5) compared to the previous L5/S1 fusion and symptomatology in the left leg. A known medical effect of surgical intervention in the spine is adjacent disc disease, whereby discs adjacent to those injured and operated on become weaker and more likely to be injured (and, for present purposes, more likely to cause or contribute to impairment). There is also evidence of L4 nerve root and pain in 2012;
(c) whilst the incident on 19 May 2021 was a new injury, the previous surgery existed and involved significant alteration of the functioning of the spine. Two vertebrae were fused together. It is not hypothetical to accept that Mr Griffith’s spine was not normal prior to the incident on 19 May 2021, anatomically, and
(d) the pre-existing pathology has contributed to the current level of impairment and has resulted in a more significant impairment.
All of the above lead to the conclusion that Mr Griffith was affected by a previous injury, resulting in a pre-existing condition in his lumbar spine. That pre-existing condition has contributed to the current degree of permanent impairment, making it more significant than it would have otherwise been.
The Appeal Panel is of the view that it would be difficult or costly to determine the extent of that contribution, and accordingly would make a deduction of 1/10th. This is consistent with that recorded by the appellant’s independent medical expert. Dr New, who provided an assessment of impairment for the worker and is also his treating specialist, makes no deduction, but provides no explanation of why this has not occurred. As a result, the MAC must be revoked and a new certificate issued, which will follow these reasons.
Other matter
It is noted that the respondent worker’s claim in the Commission was for 28% whole person impairment in the lumbar spine as a result of injury on 19 May 2021. This was based on the assessment of Dr New.
When one views the opinion of Dr New, the assessment was combined in an unusual way. Given the assessment of the Medical Assessor, that presents no issue, as the impairment assessed was in a different manner. The Appeal Panel is satisfied that the assessment of the lumbar spine (setting aside the deduction) was appropriate.
It is noted, however, that Dr New included an assessment of 2% whole person impairment for scarring. This was not reflected appropriately in the Application to Resolve a Dispute lodged in the Commission. The Medical Assessor makes the following observation in the MAC:
“I note that Dr New also assessed 2% whole person impairment for scarring, but I note that no permanent impairment of the skin was asked for in the application to resolve the dispute. Also, it was not referred to me for assessment.”
Dr Courtenay, assessing for the respondent, made no assessment of scarring. He describes the presence and appearance of the scars: “There are obviously well healed scars on the lumbar spine that are fairly obvious. There are some suture marks, there is some altered pigmentation.”
This issue has not been raised by either party in submissions, nor has the respondent lodged a cross-appeal or sought to have that aspect of the assessment remedied in any other fashion (that the Appeal Panel are aware of).
It is beyond the scope of the Appeal Panel’s jurisdiction to resolve the issue as it has not been raised. It appears, however, as though the body part of scarring (skin/TEMSKI) has been claimed and should properly be assessed at first instance by a Medical Assessor.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | M1-W3220/24 |
Applicant: | Jeff Griffiths |
Respondent: | Resmondis Australia 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 Medical Assessor Mark Burns 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 | 19 May 2021 | Chapter 4 | Chapter 15 | 16% | 1/10th | 14% |
| Total % WPI (the Combined Table values of all sub-totals) | 14% | |||||
0
6
0