Royal Comfort Bedding Pty Ltd v Hanna

DETERMINATION OF APPEAL PANEL
CITATION:	Royal Comfort Bedding Pty Ltd v Hanna [2023] NSWPICMP 372
APPELLANT:	Royal Comfort Bedding Pty Ltd
RESPONDENT:	Firial Mikha Hanna
Appeal Panel
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Gregory McGroder
MEDICAL ASSESSOR:	Doron Sher
DATE OF DECISION:	3 August 2023
CATCHWORDS:	wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; deduction under section 323; worker suffered injury to her shoulders, neck and lower back as a result of heavy work; Medical Assessor (MA) did not make section 323 deduction nor did doctor qualified by employer; employer argued on appeal that MA should have identified an X-Ray report and two isolated entries in clinical notes which pre-dated employment and made a section 323 deduction; Vitaz v Westform (NSW) Pty Ltd; Cole v Wenaline Pty Ltd, and Bojko v ICM Property Service Pty Ltd discussed; Held – Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 15 May 2023 Royal Comfort Bedding Pty Ltd (Royal Comfort) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tommasino Mastroianni, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 17 April 2023.
Royal Comfort 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 was satisfied that, on the face of the application, at least one ground of appeal was made out, being that the MAC contains a demonstrable error. We conducted a review of the original medical assessment, limited to the grounds 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, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Ms Hanna was employed by Royal Comfort as a product assembler and sewing machinist from about 2012 until 2021. She was required to assemble and repair mattresses. In about April 2015, she began to notice pain in her shoulders, neck and lower back and saw Dr Gibson at the request of her employer. She also consulted her usual general practitioner. She was referred for specialist treatment but returned to full time employment.
Ms Hanna continued to experience pain and in 2018 Dr Gibson recommended that she undertake modified duties. She said that those duties were not provided and that she saw her general practitioner who referred her for further treatment and the consideration of cervical spinal surgery. Ms Hanna returned to selected duties in 2019 and continued to perform those duties until her employment was terminated in March or April 2021.
Ms Hanna claimed permanent impairment compensation, attributing the injury to the nature and conditions of her employment and relying on a date of injury of 1 August 2018. She relied on the reports of Dr Dryson dated 2 November 2021. Dr Dryson assessed 21% whole person impairment (WPI). In arriving at that assessment, he made deductions under s 323 of the 1998 Act in respect of the components assessed for her left and right upper extremities (shoulders).
Dr Stephen saw Ms Hanna at the request of Royal Comfort’s insurer in 2019 and 2021. In 2021 he said that he observed inconsistencies on examination and assessed 10% WPI in respect of her shoulders and cervical spine. He did not assess any WPI in respect of her lumbar spine or make any deduction under s 323.
The Medical Assessor also assessed 21% WPI, comprised of 5% for Ms Hanna’s cervical spine, 7% for her lumbar spine, 6% for her right upper extremity (shoulder) and 5% for her left upper extremity (shoulder). He did not make any deduction under s 323.

PRELIMINARY REVIEW

We 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, we determined that it was not necessary for Ms Hanna to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and did not demonstrate error.

EVIDENCE

We have all the documents that were sent to the Medical Assessor for the original medical assessment and have taken them into account in making this determination.
The parts of the MAC 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 we have considered them.
In summary, Royal Comfort submitted that the Medical Assessor was in error in failing to consider a deduction under s 323 because there was a report of an X-ray of Ms Hanna’s lumbar spine in the records of her general practitioner on 2 January 2009, which pre-dated her employment, and which showed degenerative changes. It said that the Medical Assessor “failed to grapple with the extensive clinical records of various treating doctors” submitting that on 26 July 2011, Ms Hanna saw her general practitioner complaining of tenderness in her right upper back and that physiotherapy was recommended. It also noted that on 26 August 2011 Ms Hanna reported a few weeks of right shoulder pain and that scans revealed “tendinopathy and bursitis”.
Royal Comfort said that there was evidence of pre-existing symptoms in Ms Hanna’s lumbar spine and right shoulder which warranted a deduction as a pre-existing condition. It said that scans of Ms Hanna’s left shoulder and neck also showed degenerative changes and that, even if asymptomatic, a deduction was required. It relied on Vitaz v Westform (NSW) Pty Ltd[1] (Vitaz) where Basten JA said:
“…The resulting principle is that if a pre-existing condition is a contributing factor causing permanent impairment, a deduction is required even though the pre-existing condition had been asymptomatic prior to the injury…”
[1] [2011] NSWCA 254.
Royal Comfort said that the decision in Allianz Australia Insurance Ltd v Cervantes[2] “mandated” how evidence is to be taken into account and the weight it has to be given. It said that the Medical Assessor must “at least” consider the evidence and should explain why no deduction was applicable. It said that the scans of the left shoulder and cervical spine revealed degenerative changes so that a deduction was “appropriate consistent with the findings of Vitaz”.
[2] [2012] NSWCA 244.
In reply, Ms Hanna identified the material to which Royal Comfort referred noting that the report of the lumbar spine X-ray reported by Dr Sanki on 2 January 2009 read:
“The vertebral alignment is within normal limits. Mild spondylotic change is present in the discovertebral joints, with evidence of loss of disc height, end-plate sclerosis and end-plate osteophyte formation. Minor arthritic change is present in the facet joints. There are appearances suspicious for a pars defect on the left side of L4. A CT of the lumbosacral spine is suggested for further assessment.”
Ms Hanna said that there were no notes from her general practitioners explaining why that scan was undertaken and no other records which indicate that she had symptoms in her lumbar spine until about three years after she commenced working for Royal Comfort.
She submitted that a fair reading of the notes relating to her upper back pain in 2011 did not support Royal Comfort’s submission that a deduction should be made in respect of her right shoulder.
Ms Hanna said the Medical Assessor explained why he reached a different conclusion to Dr Dryson. She noted that some of the statements from case law relied on by Royal Comfort, including that from Vitaz, were taken out of context, noting that Basten JA went on to say:
“In the absence of any medical evidence establishing a contest as to whether the pre-existing condition did contribute to the level of impairment, the complaint about a failure to give reasons must fail. An approved medical specialist is entitled to reach conclusions, no doubt partly on an intuitive basis, and no reasons are required in circumstances where the alternative conclusion is not presented by the evidence and is not shown to be necessarily available.” [3]
[3] At [43].
Ms Hanna submitted that it was not necessary for the Medical Assessor to refer to every document provided, noting that in Prasad v Workers Compensation Commission[4] Harrison J said:[5]
“On the other hand, there is support for the proposition that not every matter or thing that is germane or critical to an administrative decision must, or even can, be expected to find a place in the expressed reasons of the tribunal. Nor should too close an examination of those reasons be undertaken in the hope of locating putative error. This might be thought to be all the more forceful in the scheme of legislation such as the Act where the question for consideration has been referred to a specialist tribunal with knowledge and experience of medical matters, which one might expect will relevantly have been brought to account in its deliberations and ultimate consideration of the degree of whole person impairment.”
[4] [2010] NSWSC 418.
[5] At [42].

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is 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[6] the Court of Appeal held that an 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.
[6] [2006] NSWCA 284.
The Medical Assessor set out his findings on examination and his review of the radiology, commencing on March 2015, noting the presence of degenerative changes where appropriate.
The Medical Assessor summarised the injuries and his diagnosis:
“As a result of the nature and conditions of her work the claimant sustained injuries to the neck, back and shoulders. My clinical diagnosis is spondylosis and disc disease in the cervical and lumbar and spine and shoulder tendinitis.”
He considered that, although pain focussed, Ms Hanna presented in a genuine manner and he did not observe inconsistencies on examination.
The Medical Assessor set out his assessment of WPI:
“I have assessed 8% left upper extremity impairment and 10% right upper extremity impairment (see 10b) as recorded in the table in section 5 of the MAC.
This equates to 5% and 6% WPI respectively. No deduction is applicable for pre-existing condition.
She falls into DRE Lumbar Category 11 (see 10b). She has localised tenderness and asymmetric loss of range of movement. Neurology of the lower limbs was normal. ADLs are affected and she has difficulty with heavier house chores. She is independent in selfcare. I assess 7% whole person impairment. No deduction is applicable.
She falls into DRE Cervical Category 11 (see 10b). She has tenderness and asymmetric loss of range of movement. I assess 5% whole person impairment. ADLs were attributed to the lumbar spine. No deduction is applicable.”
With respect to s 323, the Medical Assessor said:
“I note the report of Dr Dryson dated 2 November 2021. I found a significantly better range of movement than Dr Dryson for the shoulders.
He has deducted half for pre-existing condition. I made no deduction for pre-existing condition. In my opinion the arthrosis referred to by Dr Dryson is not contributing to the impairment. The AC joints were not tender and there were no symptoms in the AC joints with shoulder movements.
I found the same DRE Categories for both the cervical and lumbar spines as Dr Dryson. I agree with Dr Dryson that there is no deduction applicable for either cervical or lumbar spine.”

Statement and medical evidence

Ms Hanna described her duties in her statement. She was required to carry mattresses and place them on the sewing table where she worked on them. She also repaired mattresses, which she described as heavy work. She said that she commenced work in about 2012 and began to notice significant pain in her shoulders, neck and low back in about April 2015. After treatment she returned to work and the pain became more intense in 2018. Dr Gibson, whom she saw at the request of Royal Comfort, recommended that she request lighter work and rotate her duties.
Ms Hanna said in her statement that she returned to work on lighter duties in March 2019, though she was required to do heavy work. Her employment was terminated in 2021.
The notes from Fairfield District Medical Centre begin in December 2008 and do not record any further consultations until 15 August 2018. The X-ray report relied on by Royal Comfort appears in these notes without explanation. The X-ray was ordered on 28 December 2008 and performed on 2 January 2009. The complete report by Dr J Sanki reads:
“X-RAY ABDOMEN
Bowel gas is obscuring anatomic detail in the region of the urinary tract. No abnormal calcifications have been appreciated. If there is a persistent concern for the presence of renal calculi, a CT of the abdomen and pelvis may be of value. The intestinal gas pattern is within normal limits.
X-RAY LUMBOSACRAL SPINE
The vertebral alignment is within normal limits. Mild spondylotic change is present in the discovertebral joints, with evidence of loss of disc height, end-plate sclerosis and end-plate osteophyte formation. Minor arthritic change is present in the facet joints. There are appearances suspicious for a pars defect on the left side of IA. A CT of the lumbosacral spine is suggested for further assessment.
X-RAY SACROILIAC JOINTS
Minimal arthritic change is present in both sacroiliac joints.”
In a report dated 4 November 2018 Dr A Sanki, general surgeon, (who saw Ms Hanna at Fairfield District Medical Centre) said:
“Mrs Firial Hanna was never seen by me prior to 1 August 2018. However, according to our computer records, she was seen by Dr Adil AI-Hobaish the family doctor, on 28 December 2008 wanting prescription for Crestor tablets, 10mg daily.
Dr Adil AI-Hobaish requested an x-ray of her abdomen for suspected abdominal pain, which was within the normal limits.
An x-ray of the lumbosacral spine was also reported on 2 January 2009 at the request of Dr Adil AI-Hobaish, which showed mild spondylitic changes in the discovertebral joints with loss of some disc height with endplate sclerosis and endplate osteophyte formation. There were minor arthritic changes in the facet joints. There were appearances suspicious of a pars defect on the left side of L4.
A CT scan of the lumbosacral spine was suggested. There were also evidence of minimal arthritic changes in both sacroiliac joints.
Haematological and bio-chemical blood tests were all within the normal limits. It appears from the records that the patient did not return to see Dr Adil AI-Hobaish, to discuss her results.”
The notes from The Valley Plaza Medical Centre begin on 6 March 2008 with a consultation with Dr Yousif related to abdominal pain. Ms Hanna saw Dr Sorani with a complaint of epigastric pain on 16 April 2008. In early 2009 Ms Hanna sought treatment for gynaecological issues and issues relating to her general health. In 2011 she saw Dr Ong in respect of epigastric pain and pain in her right upper back. Dr Ong recommended mylanta and a bland diet and “ADSV PHYSIO TO UPPER BACK” [sic]. That evening, Ms Hanna reported that her epigastric pain had settled. There is nothing in Dr Ong’s notes to show that Ms Hanna sought physiotherapy.
On 8 August 2011 Dr Ong noted a history of a few weeks of right shoulder pain since pelvic surgery. The doctor noted pain on extreme abduction and that impingement was possible. On the following day, Dr Ong noted that an ultrasound showed tendinopathy and bursitis. Ms Hanna was referred to physiotherapy and a review in two weeks was recommended. There is no record of any further consultation until November 2011 and no further reference to shoulder pain until March 2015 when Ms Hanna told Dr Sorani that she was using her right hand frequently at work. Ms Hanna saw doctors at the practice regularly with respect to shoulder, neck and back pain from that time.
Ms Hanna said that her employer asked her to see Dr Gibson after the onset of pain in 2015. There are no notes from Dr Gibson in the file though there are reports from doctors who reported to him. Ms Hanna saw Dr Herald on 14 December 2015. He noted that her job involved being hunched over, “doing a lot of sewing and cutting”. Dr Herald noted that Ms Hanna had marked tenderness over her cervical spine, particular over the paravertebral muscles and similar tenderness over her lumbar spine. Her right shoulder had mild features of impingement, supported by MRI findings. He recommended conservative treatment and a lighter job.
The parties agreed that the date of injury was 1 August 2018. Though the box in the Application to Resolve a Dispute nominating a deemed date was not ticked, it is clear that Ms Hanna relies on the nature of the work performed until that date as causing her injury and Royal Comfort accepts that. Dr A Sanki said in his report dated 4 November 2018 that Ms Hanna saw her general practitioner, Dr Arslan for shoulder pain on 15 August 2018 and Dr Sanki began to treat her on 21 August 2018.

Medico-legal reports

Dr Stephen saw Ms Hanna at the request of Royal Comfort’s insurer and reported on 13 February 2019. He set out a history of right shoulder and neck pain which was treated in 2015 and that Ms Hanna had no further trouble until August 2018. He saw “multiple” investigations, referring to some taken between September 2018 and January 2019. Dr Stephen diagnosed low grade impingement in both shoulders, low grade mechanical cervical pain, which was at least partly work related, and non-specific mechanical low lumbar back ache. He considered that work was a substantial contributing factor to the injury and that repetitive and sometimes heavy work activities were at least partly responsible for the neck and shoulder symptoms, and aggravated pre-existing degenerative change in the lumbar spine. He said:
“There is no significant pre-existing condition in respect of the neck and in respect of the shoulders. There certainly was some pre-existing degenerative change in the low back where there is a mild element of work related aggravation. This aggravation is ongoing.”
Ms Hanna’s solicitors qualified Dr Dryson who reported on 2 November 2021. He saw investigations undertaken between 2015 and 2019. He diagnosed:
“• Aggravation of cervical spondylosis.
• Aggravation of lumbar spondylosis/spondylolisthesis.
• Supraspinatus tendinosis/subacromial bursitis both shoulders.
• Osteoarthrosis both shoulders/acromioclavicular joints.
• Chronic pain syndrome.”
Dr Dryson said:
“It is clear from the radiological investigations outlined above that Ms Hanna does have degenerative conditions consistent with her age. This includes cervical spondylosis in the neck, and lumbar spondylosis in the low back. In the low back, there are also pars defects, a congenital condition, which has resulted in a mild degree of slippage of one vertebra on the other, i.e., spondylolisthesis.
In the shoulders, there is evidence of osteoarthrosis of both the shoulder joints proper (glenohumeral joints) and the acromioclavicular joints, again consistent with her age.
Noting the significant physical nature of her job, and the fast pace that is required, it is reasonable to conclude that the job has aggravated the pre-existing cervical and lumbar spondylosis. I note that radiological investigations of the shoulders do show the presence of subacromial bursitis and supraspinatus tendinosis on both sides, which is most likely caused by the nature and conditions of her work.”

When assessing permanent impairment, Dr Dryson did not make a s 363 deduction in respect of Ms Hanna’s cervical and lumbar spines because she did not report any symptoms before the commencement of her employment. He deducted half of the assessed impairment of Ms Hanna’s shoulders because he diagnosed osteoarthrosis which “did not represent an injury”.
Dr Stephen saw Ms Hanna again and reported on 7 December 2021. He summarised Ms Hanna’s history from 2015 and his previous opinion and recorded a history of her current symptoms. He did not see any investigations at that consultation. Dr Stephen’s diagnosis was unchanged and he considered that her employment remained the cause of her condition. When asked about her past medical history, Dr Stephen said that there was no significant history “apart from a brief episode of neck and shoulder pain in 2015 which resolved prior to the resumption of this pain in 2018”.
Dr Stephen said that inconsistencies on physical examination made it difficult to assess WPI on the basis of the range of motion so that he made an assessment on the basis of impingement under paragraph 2.16 of the Guidelines. He assessed WPI in respect of the cervical but not the lumbar spine because the findings were “equivocal, and the likelihood of the work activities producing mechanical back pain of significance are low”.
Dr Stephen did not make a deduction under s 323. Royal Comfort did not rely on any medical evidence supporting the contention that a significant s 323 deduction should have been made.

Consideration

The Medical Assessor is an administrative decision maker and his reasons are to be considered in that light. In Bojko v ICM Property Service Pty Ltd [7] Handley AJA (with whom the other members of the Court agreed) said that the worker had failed to establish his grounds of appeal because:
“Both involved a hyper-critical approach to the reasons of the Panel which is contrary to authority and ignores the presumption of regularity which attends administrative action. The correct approach is that mandated by the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, 185 CLR 259, 272 which approved the following statement of principle in a decision of the full Federal Court:
‘… a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. … the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.’ "
[7] At [36].
It is to be presumed that the Medical Assessor has considered all of the material provided to him and which is relevant to his assessment.
The error which the Medical Assessor is said to have made is not one raised by Royal Comfort’s own medical evidence. Essentially, Royal Comfort said that the Medical Assessor should have referred to the 2009 X-ray report attached to its Reply and identified entries in a general practitioner’s notes in 2011 – neither of which had been referred to in its own medico-legal reports – and drawn a conclusion that those references indicated that there were pre-existing conditions which warranted a deduction. There is nothing in the file to show that Dr Stephen was referred to, and asked to comment on, the discrete entries.
Royal Comfort’s submissions take Basten JA’s words in Vitaz out of context by failing to quote the whole of the relevant passage. In that case the worker sought to argue that in the absence of pre-injury symptoms, there should be no deduction. His Honour noted that proposition was inconsistent with authority.
In Cole v Wenaline Pty Ltd,[8] Schmidt J said:
“The section is directed to a situation where there is a pre-existing injury, or pre-existing condition or abnormality. For a reduction to be made from what has been assessed to have been the level of impairment which resulted from the later injury in question, a conclusion is required, on the evidence, that the pre-existing injury, pre-existing condition or abnormality caused or contributed to that impairment
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 injuries. The assessment must have regard to the evidence as to the actual consequence of the earlier injury, pre-existing condition or abnormality. The extent that the later injury was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in section 323(2), where the required deduction 'will be difficult or costly to determine'.[9]
…
What s 323 required, however, was that the evidence be considered, so that it could be determined, firstly, what the level of impairment after the second injury was. Secondly, whether a proportion of that impairment was due to the first injury. Thirdly, what that proportion was. Undoubtedly in undertaking this exercise, the medical members of an Appeal Panel must utilise their medical judgement, knowledge and experience. Nevertheless, all stages of the statutory exercise must be undertaken in the light of the evidence and without the making of assumptions not provided for by the section.[10]”
[8] [2010] NSWSC 78.
[9] At [29]-[30].
[10] At [38].
The submissions made for Royal Comfort seek to raise the hypothesis that the 2009 X-ray report and the 2011 entries in the general practitioner’s notes must give rise to a consideration of a deduction. There was no contest raised by the evidence in this case as whether the observations in the report of the 2009 X-ray of Ms Hanna’s lumbar spine or the previous diagnosis of bursitis and tendinopathy in her right shoulder contributed to her condition.
We note that the findings on the 2009 X-ray are expressed in cautious terms – the changes observed are said to be mild and minor and there were appearances “suspicious” of a mild pars defect. Even without Dr Sanki’s commentary on the notes in his report to Royal Comfort’s insurer, the fact that an X-ray of the abdomen was ordered and context of the contemporaneous notes from Valley Plaza Medical Centre suggests that Ms Hanna may have sought treatment for epigastric pain rather than back pain.
The notes do not show that Ms Hanna returned to either of the medical centres complaining of back pain until 2018. There is no submission that Ms Hanna had reported neck pain before 2015.
Similarly, there is no record of Ms Hanna seeking further treatment for her upper back or shoulder after the consultations in 2011. The provisional diagnosis was tendinopathy and bursitis. Those conditions are not necessarily permanent and the records support the contention that they were short lived. In the absence of ongoing complaints, we do not consider that there were grounds for a deduction under s 323.
In 2012, Ms Hanna commenced to work for Royal Comfort, performing heavy work sewing mattresses. She performed that work without consultation with either of the medical centres until 2015 when she suffered an accepted injury. She returned to work until an accepted recurrence in 2018.
The Medical Assessor considered Dr Dryson’s opinion and explained why he did not agree that there should be a deduction for arthrosis of the acromio-clavicular joints. That finding was open to him. He explained his findings and contrasted his opinion with that of Dr Stephen.
For these reasons, we have determined that the MAC issued on 17 April 2023 should be confirmed.

[2023] NSWPICMP 372

3 August 2023