Riley v Boral Constructions Materials Group Limited

[2021] NSWPICMP 36

DETERMINATION OF APPEAL PANEL
CITATION:	Riley v Boral Constructions Materials Group Limited [2021] NSWPICMP 36
APPELLANT:	Robert Riley
RESPONDENT:	Boral Constructions Materials Group Limited
APPEAL PANEL:	Member Catherine McDonald Dr John Giles Dr Tommasino Mastroianni
DATE OF DECISION:	25 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Skin cancer as a result of sun exposure during employment as a truck driver; no issue with assessments of facial disfigurement and skin; deemed date of injury where claims for further WPI; AMS sought to assess WPI since deemed date of injury with section 323 deduction; Cole v Wenaline Pty Ltd and NSW Fire and Rescue v Clinen discussed; Held- no evidence of impairment before commencement of employment so no section 323 deduction appropriate; MAC revoked.

STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE

BACKGROUND TO THE APPLICATION TO APPEAL

1. On 28 September 2020 Robert Riley lodged an Application to Appeal Against the Decision of an Approved Medical Specialist. The medical dispute was assessed by Dr G P Curtin, an Approved Medical Specialist (AMS) under the legislation in force at that time, who issued a Medical Assessment Certificate (MAC) on 7 September 2020.

2. 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,

   ·        the MAC contains a demonstrable error.

3. The Registrar was 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 grounds of appeal on which the appeal is made.

4. The WorkCover Medical Assessment Guidelines 2006 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 WorkCover Medical Assessment Guidelines 2006.

5. The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

1. Mr Riley spent most of his working life as a truck driver and was employed by Boral Constructions Materials Group Limited (Boral) from about 1969 until 2002. In the course of that employment he was exposed to sunlight and he has previously been compensated on two occasions for permanent impairment as a result of the damage suffered to his skin.

2. Mr Riley made a claim for permanent impairment compensation on 1 March 2004, which is the deemed date of injury. He was compensated for 4% whole person impairment (WPI) under an agreement registered in the Workers Compensation Commission on 11 November 2005. He was compensated for a further 5% WPI under a complying agreement dated 16 August 2011. Having had considerable further treatment for skin cancer, Mr Riley made a further claim for permanent impairment compensation on 16 August 2011 supported by a report by Dr M McGlynn dated 25 July 2018. Dr McGlynn assessed 15% WPI comprised of 5% for facial disfigurement and 10% in respect of a skin disorder. He did not make any deduction under s 323 of the 1998 Act.

3. Boral’s lawyers arranged for Mr Riley to be assessed by A/Prof A Meares who reported on 18 October 2018. He also assessed 15% WPI comprised of 5% in respect of the skin disorder and 10% in respect of facial disfigurement. In response to a letter from Boral’s solicitors, he amended his assessment to deduct one-tenth to take account of exposure before working as a truck driver and on days off and as a result of his “genetic hereditary makeup.” His assessment was therefore 13.5% WPI, rounded up to 14%.

4. The AMS assessed a total of 15% WPI, comprised of 10% in respect of the skin disorder and 5% in respect of facial disfigurement. He deducted one-tenth because there was evidence that Mr Riley had been treated for skin cancer before 2004 and because occupational sun exposure before March 2004 was likely to have contributed to the development of subsequent skin cancers. He rounded the one-tenth deduction of 1.5% to 2% before deducting it from the total, resulting in an assessment of 13% WPI.

PRELIMINARY REVIEW

1. The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.

2. 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 is sufficient information in the file to determine the appeal.

EVIDENCE

1. The Appeal Panel has before it all the documents that were sent to the AMS for the original medical assessment and has taken them into account in making this determination. 

2. The parts of the medical certificate given by the AMS that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

1. Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.

2. Mr Riley, in submissions prepared by Mr McManamey of counsel submitted that the AMS made a demonstrable error in making a deduction under s 323 because he did not identify a pre-existing condition, abnormality or injury. The AMS was required to assess the impairment that resulted from the injury. Mr McManamey argued that the reason given for the deduction – that the condition had deteriorated since 2004 – was illogical and said that if impairment results from an injury it is immaterial that it also results from another cause. Mr McManamey noted that the AMS made an error in rounding.

3. In reply, Boral made brief submissions stating that there was no error in the MAC.

FINDINGS AND REASONS

1. 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.

2. In Campbelltown City Council v Vegan[1] 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

[1] [2006] NSWCA 284.

1. The AMS summarised his diagnosis:

   “Since 1 March 2004 Mr Riley has been treated for a chronic skin condition which has included basal cell carcinoma, melanoma, melanoma in situ, squamous cell carcinoma and squamous cell carcinoma in situ (Bowen’s disease). Treatment for this skin condition has resulted in significant scarring and disfigurement of the sun exposed areas on his body.”

2. He said:

   “There is 13% whole person impairment due to injury to the skin-ENT and related structures sustained since the date of injury.”

3. The AMS said that he had taken account of the following matters in making the assessment:

   “Although Mr Riley retired from work in 2002 the origin of his skin condition can reasonably be traced to excessive sun exposure during his 33 year employment with Boral or its predecessors. It is widely believed that cumulative exposure to ultraviolet radiation over many years is critical for the development of squamous cell carcinoma in particular, and to a lesser extent is an important factor in the development of other skin cancer including melanoma.

   The fact that ENT (ear nose and throat) has been listed in the referred body parts I assume is in regard to the scarring which has occurred on the nose.”

4. The reference to ENT is in fact a reference to Chapter 6 of the Guidelines headed “Ear, Nose Throat and Related Structures” under which facial disfigurement is assessed and to which the assessor is directed by paragraph 14.3.

5. The AMS assessed 10% WPI in respect of the skin and 5% WPI for facial disfigurement. Paragraph 10 of the MAC reads as follows:

   “DEDUCTION (IF ANY) FOR THE PROPORTION OF THE IMPAIRMENT THAT IS DUE TO PREVIOUS INJURY OR PRE-EXISTING CONDITION OR ABNORMALITY
   a. In my opinion the worker suffers from the following relevant previous injuries, preexisting conditions or abnormalities:

   Documentation has been supplied which indicates that Mr Riley was treated for skin cancer prior to 1 March 2004.

   b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:

   (i) The documented occupational sun exposure that occurred prior to 1 March 2004 is likely to have contributed to the development of subsequent skin cancers.

   c. The extent of the deduction is difficult or costly to determine so in applying the provisions of s.323(2) I assess the deductible proportion as one tenth. (can only be used when not at odds with available evidence.) There is no history of the development of skin cancer prior to commencing his employment in 1969. Subsequent sun exposure has been found to have contributed to the development of a chronic skin condition including skin cancers that were the subject of Section 66a settlements in 2001 and 2005. Some deduction needs to be made to allow for the fact that the chronic skin condition of 2020 is a deterioration of the skin condition present in 2004. What was not present in 2004 however are the number of significant skin cancers, including melanoma, which developed since then and have resulted in additional disfigurement and concerns.

   The 1/10 deduction results in 1.5% WPI which must be deducted from the total. The Guidelines (para 1.26) direct that values of 0.5 and above are rounded up to the next whole number, resulting in a total deduction of 2.0% WPI.”

Reasons

1. The date of injury agreed by the parties was the date on which Mr Riley first made a claim for permanent impairment compensation. The Application to Resolve a Dispute showed that the date was a deemed date, which indicates that the injury is a disease contracted by a gradual process under s 15 of the Workers Compensation Act 1987 (the 1987 Act). The injury was deemed to have happened, in this case, when the claim for compensation was made. However the whole period of employment is relevant.

2. The documents in the file made clear that Mr Riley had previously been compensated for permanent impairment. In these proceedings, he claimed further compensation for the deterioration of the injury which had been suffered during his employment with Boral. The documents about the previous settlements should only have alerted the AMS to the fact that Mr Riley claimed his condition had deteriorated.

3. If there is a deterioration without any further work in the employment to the nature of which a disease was due, the deemed date of injury does not change.[2] In Mr Riley’s case, the only date of injury relied on in each of the permanent impairment claims was 1 March 2004.

   [2] Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 22.

4. The comment by the AMS that a deduction needed to be made for the fact that the “chronic skin condition of 2020 is a deterioration of the skin condition present in 2004” does not reflect the law or the task required of him. The comment suggests that the AMS considered that his task was to assess the impairment since 2004. That was not what he was required to do. He was required by the referral to assess the permanent impairment as at the date of his examination, without regard to any previous settlements.

5. The AMS was assessing permanent impairment as a result of an injury deemed to have been suffered on 1 March 2004 as a result of sun exposure suffered during the whole period of Mr Riley’s employment from 1969. He was only required to consider s 323 of the 1998 Act if he considered that a degree of the impairment assessed was due to a previous injury or pre-existing condition.

6. Section 323(1) and (2) provide:

   “323   Deduction for previous injury or pre-existing condition or abnormality

(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.”

1. The AMS was correct to observe that there was no history of the development of skin cancer before Mr Riley commenced employment in 1969. Medically, it is likely that Mr Riley had already suffered some skin damage by that stage and that he suffered some damage whilst not at work during the period 1969 to 2002.

2. However, a deduction cannot be made under s 323 unless there is evidence that there was skin damage before Mr Riley commenced employment. In Cole v Wenaline Pty Limited[3] (Cole), Schmidt J said:

   “Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, ‘irrespective of outcome’, contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction ‘will be difficult or costly to determine (because, for example, of the absence of medical evidence)’. In that case, an assumption is provided for, namely that the deduction ‘is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence.”[4]

   And

   “Section 323 requires that a conclusion be reached as to whether or not any proportion of permanent impairment assessed resulted from an earlier injury, pre-existing condition or abnormality. In a case such as this, that conclusion must be reached on the evidence led as to the actual consequences of the earlier and later injuries, unless the assumption provided in s 323(2) applies.”[5]

   [3] [2010] NSWSC 78.

   [4] At [30].

   [5] At [34].

3. Fire and Rescue NSW v Clinen[6] concerned a claim for permanent impairment compensation as a result of skin cancer. Campbell J referred to Cole and said[7]:

   “This case is a little different from Cole. There Schmidt J was concerned with the causal connection connoted by the phrase "due to". Her Honour made the pertinent observation that it was necessary for the evidence acceptable to the appeal panel to actually support the connection between a previous injury (here, pre-existing abnormality or condition) and the overall degree of impairment in the instant case. Here, as Mr. Edwards pointed out, I am concerned with a logically anterior question: did the evidence of Dr. Shumack, which the appeal panel seemed to accept, that there was exposure to the sun in the worker's early years, mandate a finding of pre-existing condition or abnormality within s 323 WIM as the only legally sustainable conclusion? In my judgment, it did not.

The analysis of Giles JA in Smart, to which I have referred, supports a legal distinction between a medical condition and the circumstance giving rise to it. The meaning of ‘condition’ in ordinary language may extend to include a prerequisite to something else. The worker's exposure to sunlight in his youth, in that broad sense, is a pre-existing condition. But the word ‘condition’ in the present statutory context, in my judgment, has a more limited meaning. In the context of legal causation, as with the meaning of the phrase ‘due to’, one may refer to any one of the necessary ‘conditions’ giving rise to a consequence as a cause, or prerequisite, of it. As a matter of causation, the worker's skin cancer is due to his exposure to sunlight, including during his youth before the commencement of his employment with the employer. But causation is not the presently relevant context.

The context here is provided by s 323 and arises from the juxtaposition of words ‘previous injury’, with ‘pre-existing condition or abnormality’. The natural meaning in that restricted context of ‘condition’ is ‘medical or like condition’ in the sense of a diagnosable, or established, clinical entity.”

[6] [2013] NSWSC 629.

[7] At [33]-[35].

1. There is no evidence that Mr Riley suffered skin damage from sun exposure before he commenced employment with Boral in 1969 and it was not appropriate to make a deduction under s 323.

2. Though it is not relevant to the outcome of the appeal, it is appropriate to note that the AMS did not correctly apply the principles set out in paragraph 1.26 with respect to rounding. The AMS was required by that section to assess the impairment and then make any deduction under s 323 and round the result. If it was appropriate to deduct one-tenth from 15%, the result after rounding is 14%.

3. For these reasons, the Appeal Panel has determined that the MAC issued on 7 September 2020 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

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 G P Curtin 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 WorkCover Guides	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)
The face	1 March 2004	Chapter 6, p 34, Table 6.1	5%	0	5%
The skin	1 March 2004	Chapter 14	Table 8-2 p 178	10%	0	10%
Total % WPI (the Combined Table values of all sub-totals)					15%

Catherine McDonald

Member

Dr John Giles

Medical Assessor

Dr Tommasino Mastroianni

Medical Assessor

25 March 2021