Smith v Secretary, Department of Education
[2021] NSWPIC 292
•13 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Smith v Secretary, Department of Education [2021] NSWPIC 292 |
| APPLICANT: | Mark Smith |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Catherine McDonald |
| DATE OF DECISION: | 13 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Further claim for permanent impairment compensation under the Table of Disabilities; worker suffered an injury to both feet in 1993 and compensated in respect of both feet; medical report obtained to support further claim assessed loss of use of each leg below the knee; no claim made in respect of consequential condition; referral should seek assessment in respect of feet; Held- remitted for referral to Medical Assessor. |
| DETERMINATIONS MADE: | 1. I remit the matter for referral to a Medical Assessor to assess the applicant’s permanent impairment as a result of an injury to his right and left heels. Date of injury: 1 March 1993 2. The documents to be sent to the Medical Assessor are: a. Application to Resolve a Dispute; b. Reply, and c. this Certificate of Determination. |
STATEMENT OF REASONS
BACKGROUND
Mark Smith is employed by the Secretary, Department of Education (the Department) as a school principal. On 1 March 1993, while on an excursion in the course of his employment as a teacher, he suffered an injury to both heels.
On 28 August 2001 the parties signed Terms of Settlement under which Mr Smith was compensated under the Table of Disabilities for 8% loss of use of each foot and for pain and suffering under s 67 of the Workers Compensation Act 1987 (the 1987 Act).
In 2021 Mr Smith made a further claim for permanent impairment compensation, based on a report by Dr J G Bodel dated 19 June 2020 in which he assessed 15% loss of use of each leg below the knee as a consequence of bilateral heel pain.
There is no dispute that Mr Smith is entitled to make one further claim for permanent impairment compensation after 19 June 2012 under Sch 8 cl 11 of the Workers Compensation Regulation 2016.
The issue for determination is whether the referral to a Medical Assessor should seek assessment by reference to each foot or each leg below the knee.
PROCEDURE BEFORE THE COMMISSION
The proceedings were listed for telephone conference on 1 July 2021 when Mr Dawson appeared for Mr Smith and Mr Quillan appeared for the Department.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties agreed to the determination of the matter without a conference or formal hearing. Directions were made to file written submissions.
EVIDENCE
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply.
Mr Smith prepared a statement dated May 2020 in which he acknowledged the previous payment. He said that the pain in his heels has worsened and continues to affect his quality of life. The pain is centred on “the outer lower rim of both heels as well as the core of the heels themselves.”
Dr Bodel said that Mr Smith was diagnosed with a traumatic form of plantar fasciitis. He continues to have pain in both heels. On examination, he noted that Mr Smith has a restricted range of movement in each ankle, with tenderness over the anterior tubercle of the calcaneus and some tenderness at the insertion of the Achilles tendon in the calcaneus. Dr Bodel said that Mr Smith had localised heel pain and assessed 15% permanent loss of efficient use of each leg below the knee as a result of the heel pain.
Dr S Harbison prepared a report dated 1 March 2000. He said that he first examined Mr Smith on 20 January 1995. Dr Harbison said that he did not reach a precise diagnosis but considered the possibility of a contusion to the heel pads and recommended that Mr Smith use rubberised padding in the heels of his shoes.
Dr Harbison examined Mr Smith again in February 2000, when Mr Smith continued to suffer pain in his heels. Dr Harbison noted marked hyperkeratosis (callosity) but an ultrasound did not reveal underlying bursitis. He considered that the symptoms arose from the callosity but did not consider that there was a direct connection between that condition and the injury.
An x-ray and ultrasound of both heels dated 12 June 2020 did not reveal any definitive pathology.
Mr Smith was examined by Dr M Dares, orthopaedic surgeon, who reported to his general practitioner on 31 July 2020. She diagnosed bilateral heel pad syndrome and had discussed the possibility of a fat pad transfer with a plastic surgeon, Dr Barker. She recommended an MRI scan. If the scan showed plantar fasciitis as opposed to fat pad wasting, Dr Dares recommended considering a Botox injection. When discussing the history, Dr Dares said that the pain did not radiate along the arch of Mr Smith’s feet and was therefore more suggestive of heel pad syndrome than plantar fasciitis.
After obtaining an MRI scan (the report of which does not appear in the file) Dr Dares said that on Mr Smith’s right foot, it showed some signal change in the fat pad but no thickening in the plantar fascia. On the left, where Mr Smith had the most symptoms, there was some thickening of the plantar fascia. She proposed a Botox injection.
Mr Smith’s statement predates that treatment and there is no follow up report from a treating doctor.
The Department’s insurer arranged for Mr Smith to be examined by Dr F Machart who reported on 19 January 2021. He observed:
“Soft heel pads particularly around the periphery. Poorly defined tenderness around the peripheral heels and over the plantar fascia, full range of movement in ankles and subtalar joints. No deformity. Soft callosities with cracks around the periphery of heels.”
The only investigations Dr Machart saw were the x-ray and ultrasound dated 12 June 2020. He said that Mr Smith did have Botox injections which provided about six weeks relief.
Dr Machart assessed 10% loss of use of each foot under the “Table of Maims.”
The Department’s insurer made an offer of compensation in respect of a further 2% loss of use of each foot.
SUBMISSIONS
The written submissions remain on the Commission’s file.
Mr Dawson noted that the report which formed the basis of the previous assessment was not available and, in particular, that it was not the report of Dr Harbison. He noted that Mr Smith was entitled to make a further claim because his previous claim was made before 19 June 2012.
Mr Dawson summarised Dr Bodel’s and Dr Machart’s reports and submitted that Dr Machart’s report was irrelevant because it was prepared by reference to the Table of Maims in the Workers Compensation Act 1926 and not the Table of Disabilities in the 1987 Act. He said that despite the apparent similarity, the Table of Maims required an assessment of the injury and the Table of Disabilities required an assessment of the disability. That was the assessment which Dr Bodel made. He said that Dr Machart’s report should not be provided to the Medical Assessor because it had the potential to confuse.
Mr Quillan prepared submissions on behalf of the Department. He summarised Mr Smith’s statement and the medical evidence. He said that the Department did not dispute that Mr Smith had an injury to both lower limbs (heels) but that the claim now made was inconsistent with the previous agreement set out in the Terms of Settlement, being made on a different basis.
Mr Quillan said that Mr Smith’s statement continued to confine his complaints to heel pain and that Dr Bodel’s report did not provide a reason for assessment on a different basis.
In the alternative, he submitted that the previous Term of Settlement gave rise to a res judicata estoppel in respect of the injury which bound the parties, relying on Manpower Pty Ltd v Harris[1] (Manpower).
[1] [2011] NSWWCCPD 10.
FINDINGS AND REASONS
Schedule 8 cl 11 of the Workers Compensation Regulation provides:
“11 Lump sum compensation: further claims
(1) A further lump sum compensation claim may be made in respect of an existing impairment.
(2) Only one further lump sum compensation claim can be made in respect of the existing impairment.
(3) Despite section 66(1) of the 1987 Act, the degree of permanent impairment in respect of which the further lump sum compensation claim is made is not required to be greater than 10%.
…
(6) In this clause—
existing impairment means a permanent impairment resulting from an injury in respect of which a lump sum compensation claim was made before 19 June 2012.
further lump sum compensation claim means a lump sum compensation claim made on or after 19 June 2012 in respect of an existing impairment.
lump sum compensation claim means a claim specifically seeking compensation under section 66 of the 1987 Act.”The agreement between the parties in the previous proceedings was that Mr Smith had suffered an injury to his feet. The transitional provision permits him to make a further claim in respect of the existing impairment, that is, the impairment as a result of the injury to his feet.
A review of the limited evidence in the file show that Mr Smith’s complaints of pain are related to his heels. He did not describe any other impairment in his statement. His statement is relatively short and does not deal with the treatment he has undergone since it was prepared in May 2020.
Dr Bodel said that Mr Smith was originally diagnosed with traumatic plantar fasciitis but the source of that diagnosis is not disclosed. Though he assessed Mr Smith by reference to the leg below the knee, Dr Bodel did not describe a work-related injury to or a condition in any part of his leg other than the heel. He said that Mr Smith’s range of ankle motion was limited but did not explain if that is related to the injury or is an incidental finding.
Recently Dr Dares considered the diagnosis of plantar fasciitis and it appears that she provided Botox injections. Without more detail about that treatment it is difficult to draw any conclusion about whether there was an injury or condition in any part of Mr Smith’s foot other than his heel. However, even if plantar fasciitis affected any part of his foot, it would not provide a basis for assessment of anything other than his feet.
The fact that there was an agreement that the injury was to the feet would not necessarily prevent an assessment of Mr Smith’s legs below the knee if it was found on the basis of statement and medical evidence that he now suffered a consequential condition in a body part other than his foot. There is no evidence here that Mr Smith has suffered a consequential condition.
Even if there was, it would be necessary for a claim to be made on the basis of a consequential condition and, if a dispute arose, for the Commission to make a determination as to whether there was a consequential condition before a Medical Assessor examined Mr Smith. Here that did not occur and Dr Bodel has merely assessed impairment arising from the injury to Mr Smith’s feet by a different method.
The referral to the Medical Assessor should be made on the basis of the injury to Mr Smith’s feet. I do not agree that there is reason to remove Dr Machart’s report from the file. The form of the referral will alert the Medical Assessor to the appropriate method of assessment.
Estoppel
The estoppel considered in Manpower did not bind the parties as to the nature of the injury. It is necessary to consider what was in issue in that case to understand why it does not have the effect in this case that Mr Quillan contended.
The employer sought to deny injury, having agreed in previous proceedings, settled by consent orders, to pay weekly compensation. Roche DP considered the law with respect to estoppels arising from consent orders. He described the effect of previous consent orders in those proceedings[2]:
“Once it is accepted that the words ‘without admission of liability’ are of no effect (Ashenden), the consent orders ‘necessarily involved’ the admission by Manpower that Mr Harris was a ‘worker’ employed by it, that he received an ‘injury’ in the course of or arising out of his employment, that his employment was a substantial contributing factor to that injury, and that he was incapacitated as a result of that injury. Those admissions follow from the face of the consent orders and the history of the matter. That history includes the fact that Manpower originally disputed the claim and then, after receipt of Dr Khan’s report, consented to the Commission making the orders for the payment of weekly compensation at the maximum statutory rate for a single worker with no dependants, as adjusted, under s 40 of the 1987 Act from 28 July 2008 to date and continuing and for the payment of s 60 expenses up to $500.”
[2] At [94].
The employer had also argued that the description of the worker’s condition had changed since the consent orders (being originally described as hernia and described in the subsequent claim as right inguinal neuralgia or a soft tissue injury to the right groin). Roche DP said:[3]
“That another doctor has a different opinion or ‘label’ for the worker’s condition is of no consequence. Consistent with the evidence from Drs McDonald, Collins and Khan, Dr Garvey stated that Mr Harris’s condition had resulted from the incident at work on 19 May 2008. That did not involve a ‘change in character’ in the case. It is not essential for the Commission to put a ‘label’ on the worker’s condition or be concerned because witnesses have labelled it differently. In Federal Broom Co Pty Ltd v Semlitch[1964] HCA 34; 110 CLR 626 (Semlitch), Windeyer J said (at 639) ‘[b]ut I can see no need for the Court to put a label upon the applicant’s illness, or to be concerned because witnesses labelled it differently’. What is necessary is that the worker received a personal injury. The fact that Mr Harris received a personal injury was conceded by Manpower in the consent orders and it is of no consequence that doctors who saw him after 14 August 2009 (the date of the consent orders) put a different label on his condition.”
[3] At [101].
The estoppel which arose in Manpower was that the worker had suffered an injury, not as to the nature of the injury.
In this case, I am satisfied that Mr Smith suffered an injury to each of his feet and it is the question of the impairment arising from that injury which should be referred to a Medical Assessor.
Orders
I make the orders set out below.
I remit the matter for referral to a Medical Assessor to assess the applicant’s permanent impairment as a result of an injury to his right and left heels.
Date of injury: 1 March 1993
Body part: Left foot
Right foot
Method of assessment: Table of Disabilities
The documents to be sent to the Medical Assessor are:
(a) Application to Resolve a Dispute;
(b) Reply, and
(c) this Certificate of Determination.
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