Smoke Alarms Australia Pty Limited v Skinner-Smith
[2023] NSWPICMP 389
•11 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Smoke Alarms Australia Pty Limited v Skinner-Smith [2023] NSWPICMP 389 |
| APPELLANT: | Smoke Alarms Australia Pty Limited |
| RESPONDENT: | Kevin Skinner-Smith |
| Appeal Panel | |
| MEMBER: | Catherine McDonald |
| MEDICAL ASSESSOR: | Tommasino Mastroianni |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 11 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; section 323 deduction; worker’s left hip was asymptomatic before injury; radiology showed advanced osteoarthritic change in both hips; left total hip replacement; right hip remains asymptomatic; Medical Assessor made section 323 deduction of one-tenth and gave reasons; Cole v Wenaline Pty Ltd, Vitaz v Westform (NSW) Pty Ltd, El-Masri v Woolworths Ltd, Vannini v Worldwide Demolitions Pty Ltd considered; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 May 2023 Smoke Alarms Australia Pty Limited (Smoke Alarms) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Long, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 14 April 2023.
Smoke Alarms relies on the ground-s of appeal under s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) – that the MAC contains a demonstrable error.
The delegate was satisfied that, on the face of the application, the ground of appeal was made out. We conducted a review of the original medical assessment, limited to the grounds 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
Mr Skinner-Smith was employed by Smoke Alarms as a smoke alarm technician. On 31 August 2018 he suffered an injury to his left hip, left groin and lumbar spine. He felt a tearing sensation in his left groin while carrying a ladder on stairs, causing him to fall forward. He underwent treatment.
In 2020 Mr Skinner-Smith made a claim for permanent impairment compensation in respect of his lumbar spine and left lower extremity (hip and groin). He commenced proceedings and his claim was referred to Dr Anderson issued a MAC on 19 November 2020. Mr Skinner-Smith lodged a medical appeal which included material which indicated that he intended to undergo a left total hip replacement on 1 February 2021. After issuing directions and considering submissions, the previous appeal panel accepted that the ground of appeal in s 327(3)(a) had been established – that there had been a deterioration in his condition which resulted in an increase in the degree of impairment. The previous appeal panel declined to assess permanent impairment in respect of Mr Skinner-Smith’s left lower extremity. It did not accept that there was a demonstrable error in the previous assessment of his lumbar spine.
The previous MAC was revoked in part. No Certificate of Determination was issued or agreement made with respect to the impairment of Mr Skinner-Smith’s lumbar spine.
Mr Skinner-Smith made a further claim for permanent impairment compensation in 2022 and he was referred to the Medical Assessor. The Medical Assessor assessed 6% whole person impairment (WPI) in respect of his lumbar spine and that assessment is not the subject of appeal. He assessed 20% WPI in respect of the left lower extremity, reduced to 18% after a deduction of one-tenth under s 323 of the 1998 Act, resulting in a total assessment of 22% WPI.
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 Mr Skinner-Smith to undergo a further medical examination because the assessment made by the Medical Assessor was open to him and the MAC does not contain a demonstrable 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, Smoke Alarms submitted that the Medical Assessor did not apply the correct methodology when making a deduction under s 323 of the 1998 Act. It said that he was required to determine if pre-existing osteoarthritis in Mr Skinner-Smith’s left hip made a difference to his impairment. It submitted that it was necessary for the Medical Assessor to determine the extent to which the pre-existing pathology contributed to the need for the total hip replacement treatment. Smoke Alarms acknowledged that its insurer had accepted that liability for the left total hip replacement on the basis that the injury was a material contribution to the need to surgery. It said that a total hip replacement results in a “baseline” assessment of 15% WPI. It submitted that the application of the “broad application” of the principles in the authorities with respect to s 323 meant that if specific treatment gives rise to a baseline assessment then the extent to which the pre-existing condition contributed to the need for the treatment must be considered. It said that the Medical Assessor failed to do that.
Smoke Alarms said that the Medical Assessor made a demonstrable error in applying s 323(2) and applying a one-tenth deduction because it was at odds with the available evidence. It submitted that the Medical Assessor had not quoted all of the findings of a CT scan reported on 11 September 2018 within two weeks of the injury. On 22 November 2018 Dr Salaria said that the history was consistent with the aggravation of osteoarthritis. Smoke Alarms noted that Dr Machart, qualified on its behalf,` considered that the surgery was conducted for osteoarthritis which was not caused by the injury. It referred to the Medical Assessor’s statement that Mr Skinner-Smith’s osteoarthritis would probably have continued to be asymptomatic for a time and said that meant that it was inevitable that hip symptoms would develop so that the underlying pathology had a significant contribution to the need for surgery and a deduction of one-half, as made by Dr Machart, was appropriate.
Smoke Alarms said that the Medical Assessor failed to give adequate reasons why it was difficult or costly to determine the extent of the deduction when there was a CT scan which showed the exact pathology present at the time of the injury.
In reply, Mr Skinner-Smith submitted that the evidence clearly showed that the work aggravation of the underlying condition was the cause of the need for the total hip replacement and that the condition was asymptomatic until the injury. Referring to El-Masri v Woolworths Pty Ltd[1] (El-Masri), he submitted that the Medical Assessor was entitled to draw on his expertise and exercise his clinical judgement in assessing the deduction required under s 323. Mr Skinner-Smith said that the Medical Assessor commented on Dr Machart’s report, applied his clinical judgement and set out the path of his reasoning sufficient to allow an understanding of how he reached the decision. His opinion was that “an accurate deduction cannot be determined” and no further explanation was required.
[1] [2014] NSWSC 1344.
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[2] 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.
[2] [2006] NSWCA 284.
The MAC
The Medical Assessor set out a history of the injury and Mr Skinner-Smith’s subsequent treatment. Though he quoted only a small part of the report, the Medical Assessor noted that a CT scan performed on 11 September 2018 showed advanced bilateral hip osteoarthritis. He said:
“In spite of demonstrating extensive pre-existing degenerative osteoarthritis in the right and left hips and extensive degenerative changes in the lumbar spine, Mr Skinner-Smith indicated that he had had no significant symptoms related to his lumbar back, or right or left hips, prior to the work injury of 31 August 2018.”
When summarising the injuries and diagnoses, the Medical Assessor said:
“As a result of the injury, he sustained at work on 31 August 2018, Mr Kevin Skinner-Smith, who is now 66 years of age, injured his left shoulder, lumbar back, left hip and left knee. With conservative management, symptoms in his left shoulder resolved. Symptoms related to his lumbar spine resolved, only to recur. He has ongoing pain in his lumbar back without evidence of radiculopathy but with non verifiable radiculopathy. The initial injury caused severe pain in the left groin, which was ongoing. Imaging studies following the injury revealed asymptomatic, pre-existing extensive osteoarthritis of the left and right hips, as well as extensive degenerative changes in the lumbar spine. These were asymptomatic until the work injury of 31 August 2018.
Symptoms in the left hip continued and left total hip replacement surgery was undertaken on 1 February 2021 with a good functional result, although he continues to have some pain in the left groin.”
The Medical Assessor said that the accident caused “…aggravation of pre-existing, asymptomatic degenerative changes in the left hip warranting successful left total hip replacement surgery.” He assessed 20% WPI in respect of Mr Skinner-Smith’s left lower extremity (hip), his assessment indicating that he had obtained a fair result from surgery.
The Medical Assessor commented on other reports in the file, noting that Dr Berry (who examined Mr Skinner-Smith at the request of his solicitor) assessed 20% WPI after surgery and made a one-tenth deduction in respect of pre-existing changes. He noted that Dr Machart said:
“The initial injury was reported to be due to muscle. I suspected there was a degree of non-structural injury to the hip. There is some conjecture about this. The hip replacement was conducted for primary osteoarthritis, which was not caused by the injury. My assessment is that half deduction is applicable…”
The Medical Assessor commented:
“The initial injury and symptoms in the groin are considered due to instantaneous aggravation of pre-existing, asymptomatic degenerative osteoarthritis in the left hip. Without that injury, it is probable that Mr Skinner-Smith would have continued for a time comparable to his similarly affected asymptomatic degenerative osteoarthritis in the right hip. An accurate deduction cannot be determined and a nominal 10% deduction is applied.”
Medical evidence
Mr Skinner-Smith’s evidence is that he was very active before the injury and that his work was “hectic”. Following the injury on 31 August 2018, Mr Skinner-Smith saw Dr Sarki on 4 September 2018 when he complained of left groin pain and declined an ultrasound. On 10 September 2018 Dr Sarki recorded that Mr Skinner-Smith had pelvic pain, left groin pain and gluteal area pain.
The report of the CT scan of Mr Skinner-Smith’s pelvis dated 11 September 2018 reads:
“CLINICAL HISTORY: Bilateral hip pain, left groin pain, gluteal pain.
TECHNIQUE: Helical acquisition non-contrast imaging through the pelvis.
FINDINGS: There is bilateral hip joint osteoarthritis with prominent marginal osteophytic lipping, likely contributing to reduced range of movement and likely to be a source of pain generation. The minimally visualised lower lumbar spine demonstrates prominent facet joint arthropathy at L5/S1. No focal skeletal abnormality. No significant soft tissue finding on non-contrast imaging.
CONCLUSION:
Advanced bilateral hip joint OA. The patient may benefit from imaging guided intra-articular steroid/local anaesthetic injection, which may be diagnostic and therapeutic.”
Mr Skinner-Smith saw Dr Salaria, orthopaedic surgeon, on 22 November 2018. Dr Salaria recorded that Mr Skinner-Smith had “back pain radiating to both buttocks and left groin and anterior thigh” and said:
“On examination he has restricted left hip movements which correspond with CT scan findings of severe hip arthritis. There is also moderate arthritis on the right side. There is no neurological deficit but his buttock and hamstring tightness correspond with moderate L4-5 stenosis and facet joint arthrosis.
His history corresponds with aggravation of his hip arthritis and lumbar canal stenosis.
I have explained to him that the exacerbation of pain may settle down to a level but his function may not get back to normal as the left hip arthritis, stiffness and pain may persist. At some stage he will require a left hip replacement and may need the lumbar canal decompression or L4 - Sacrum fusion if the back pain and disability does not improve.”
In a report dated 27 November 2020 Dr Salaria said:
“Kevin is mobilising with a stick now and after discussing with his family and watching his own video of walking and looking at the xray of severe hip arthritis he has decided to be booked for the left total hip replacement on the 1st February 2021.
He has severe hip arthritis and restricted left hip range of movements - flexion 70-80°, internal rotation -10, external rotation 10-25° abduction 10-20° and adduction -10°. All this corresponds with the xray finding of severe bone on bone left hip arthritis.
He denies any hip pain prior to the fall and has been limping ever since the injury. He has tried the non operative treatment for a long time but still has painful limp and is restricted in all the social personal and work related physical activities.”
The surgery was undertaken on 1 February 2021.
Dr Machart saw Mr Skinner-Smith at the request of Smoke Alarms on 6 May 2020 when he considered that the diagnosis was an adductor muscle tear. He said that there was an element of pain behaviour in that severe pain was reported on attempted movement of the left hip, not supported by objective evidence of injury. Dr Machart did not see any scans at the time of that examination.
Dr Machart was provided with reports which he reviewed and he prepared a further report dated 22 June 2020. He said that there was evidence of advanced bilateral osteoarthritis in both of Mr Skinner-Smith’s hips and three level spinal canal stenosis which he considered responsible for all of the ongoing symptoms. He considered that there was no WPI arising from the injury.
Dr Machart provided a third report dated 27 July 2022, well after the surgery. His opinion was that Mr Skinner-Smith suffered:
“• Osteoarthritis in the left hip. This pathology not caused by the injury. Left hip replacement was conducted. There remains pain around the left hip, which is difficult to align with single pathology. Mr Skinner-Smith is focusing the pathology of multiple explanations, muscle tears, impingement, and hip out of alignment. Ultimately there is a hip replacement. There are soft tissue issues that caused ongoing pain.
• The right hip is diagnosed as osteoarthritis. This remains asymptomatic.
• The lumbar spine symptoms have resolved.
In terms of liability, there now appears to be a link, pain that never resolved after the injury on 31/08/2018. It could be argued that there was non-structural exacerbation, unbroken chain of symptoms evident up to the hip replacement and beyond, including now.”
Dr Machart did not accept that there was a left hip injury until his last report, written after the total hip replacement had been undertaken. With respect to the mechanism of injury, Dr Machart noted that it was “reported to the left hip/groin then, adductor injury, which I suspect was aggravation of pre-existing osteoarthritis, asymptomatic before the injury.” Dr Machart assessed 20% WPI in respect of Mr Skinner-Smith’s left hip and said:
“The initial injury was reported to be due to muscle. I suspected there was a degree of non-structural injury to the hip. There is some conjecture about this. The hip replacement was conducted for primary osteoarthritis which was not caused by the injury. My assessment is that half deduction is applicable.”
Dr Machart’s reports do not contain detailed reasons for the extent of the deduction.
Section 323
Smoke Alarms’ submissions about a “baseline assessment” following hip replacement surgery bear little relation to the words of s 323. The submission that the Medical Assessor was required to determine the extent to which the underlying condition caused the need for treatment is also an unwarranted gloss on the words of s 323.
Section 60 expenses are payable if an injury materially contributed to the need for surgery[3]. Smoke Alarms’ insurer agreed that was the case with respect to Mr Skinner-Smith’s left hip.
[3] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
The task of the Medical Assessor was different. He was required to assess Mr Skinner-Smith’s WPI on the day he presented for assessment. The method of assessment was mandated by the fact that he had undergone a total hip replacement. He was then required to apply s 323 of the 1998 Act and give reasons for the deduction he made.
Section 323 provides:
“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.”
It is clear that Mr Skinner-Smith had pre-existing osteoarthritis in both hips. The Medical Assessor determined that the injury was an instantaneous aggravation of the underlying changes in Mr Skinner-Smith’s left hip, leading to surgery.
It was necessary for the Medical Assessor to determine the extent of the deduction for the proportion of the impairment of his left lower extremity (hip) due to that condition. He was required to engage with the evidence, make a clinical judgement and to express the reasons for the deduction he made. He acknowledged the pre-existing condition and determined on the evidence that s 323(2) applied.
In Cole v Wenaline Pty Ltd,[4] Schmidt J considered a case in which the medical members of an appeal panel found that a considerable deduction under s 323 was warranted. They determined that the appropriate deduction which reflected the WPI which would have been assessed as a result of surgery had been undertaken as a result of a previous injury some years before, despite the worker’s employment as a labourer before the relevant injury.
[4] [2010] NSWSC 78.
Her Honour 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' (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.[5]
…
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.”[6]
[5] At [29]-[30].
[6] At [38].
If a pre-existing condition is a contributing factor to impairment, a deduction is required, even if the condition is asymptomatic (see Vitazv Westform (NSW) Pty Ltd[7]). The Medical Assessor accepted that the condition was relevant but was asymptomatic, noting that Mr Skinner-Smith’s right hip remains asymptomatic.
[7] [2011] NSWCA 254 at [43].
In making his assessment and determining the appropriate deduction, the Medical Assessor was required to exercise his clinical judgement. In El Masri,[8] Campbell J said:
“…, the process is one of expert evaluation. Often when judgment of any type is called for, there will be a gap between expression of reasons and articulation of decision which cannot itself be fully articulated. That gap constitutes what might be called judgment. ... Basically, the statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. Applying that standard, it is clear what was decided and why, as is the reasoning process that led to the decision, …”
[8] At [50].
Smoke Alarms highlighted the Medical Assessor’s use of “for a time.” In context, the Medical Assessor considered that Mr Skinner-Smith “would have continued for a time comparable to his similarly affected” right hip. Those words should not necessarily be taken to mean that the Medical Assessor considered that the surgery - and the resulting impairment - was inevitable.
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 [9] 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.’ "
[9] At [36].
There is nothing to indicate that a right total hip replacement is planned and the doctors who have examined Mr Skinner-Smith record that his right hip remains asymptomatic – including Dr Machart in his 2022 report.
While other assessors might have made a greater deduction, our task is to determine if the Medical Assessor made a demonstrable error. In Vannini v Worldwide Demolitions Pty Ltd[10] Gleeson JA considered the meaning of demonstrable error. An error is not demonstrable merely because an appeal panel might disagree with the opinion of the Medical Assessor.[11] His Honour said:[12]
“… In this case, the Panel was considering the reasoning of the medical specialist on the question of causation arising under s 323. The relevant issue was whether any proportion of the impairment was due to any previous injury, or pre-existing condition or abnormality? If so, what was that proportion?
The first question involved an assessment by the Panel, substantially of fact by reference to the evidence, although in part informed by the exercise of a clinical judgment. Such an assessment may be characterised as an evaluative judgment or conclusion based on findings of fact. Nonetheless, the legal criterion applied to reach that conclusion on causation demands a unique outcome, rather than tolerates a range of outcomes. Accordingly the reasoning and finding of the medical specialist attracts the correctness standard of review by a Panel.
The position may be different in relation to the second question. A finding as to the proportion of permanent impairment due to previous injury, pre-existing condition or abnormality involves matters of degree and impression. The applicable standard of the ‘proportion’ of contributory contribution under s 323 permits some latitude of opinion such as to admit of a range of legally permissible outcomes. That is not to say that such a conclusion is necessarily beyond review by an Appeal Panel on the ground of demonstrable error. However, the resolution of that question should be left to a case where it is dispositive.”
[10] [2018] NSWCA 324.
[11] At [87].
[12] At [90]-[92].
Read as a whole, the MAC shows that the Medical Assessor considered the history and the radiology. Though both hips had extensive degenerative change, Mr Skinner-Smith was asymptomatic before the injury on 31 August 2018. After that injury, he suffered symptoms in the left hip which continued until total hip replacement surgery. The Medical Assessor expressed his opinion succinctly but explained why he applied a one-tenth deduction. That exercise of his clinical judgement was within the range of outcomes open to him.
For these reasons, we have determined that the MAC issued on 14 April 2023 should be confirmed.
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