State of New South Wales (Hunter New England Local Health District) v Outram
[2021] NSWPICMP 181
•27 September 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Hunter New England Local Health District) v Outram [2021] NSWPICMP 181 |
| APPELLANT: | State of New South Wales (Hunter New England Local Health District) |
| RESPONDENT: | John Outram |
| APPEAL PANEL: | Member John Wynyard Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 27 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from finding of 53% whole person impairment for disease conditions; whether Medical Assessor (MA) obliged to apportion between disease injuries, frank injuries and micro traumata; Held - nature of claimed injury is for Commission determination; Jaffarie v Quality Castings Ply Ltd applied; terms of referral binding on an MA; Skates v Hills Industries Ltd applied; whether frank injuries and micro traumata material factors to disease discussed; Department of Education v Johnson considered; Medical Assessment Certificate confirmed. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 15 June 2021 State of New South Wales (Hunter New England Local Health District), the appellant employer, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 18 May 2021.
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 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.
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.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 25 March 2021 the matter was referred by the Commission to the MA for an assessment of WPI caused to:
· Left lower extremity (knee)
· Right lower extremity (knee)
· Right upper extremity (shoulder)
· Left upper extremity (shoulder)
· Lumbar spine
· Cervical spine
· Scarring – TEMSKI
This impairment was caused by injury on 10 August 2020 – deemed.
Mr Outram was employed as a psychiatric nurse for the Hunter Area Health Service, working at the James Fletcher Hospital between 1976 and 2014.
The MA certified the following:
· Left lower extremity (knee) 14%
· Right lower extremity (knee) 18%
· Right upper extremity (shoulder) 5%
· Left upper extremity (shoulder) 5%
· Lumbar spine 13%
· Cervical spine 14%
· Skin – TEMSKI 1%
giving a total of 53% WPI.
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 WorkCover Medical Assessment Guidelines 2006.
The appellant employer did not seek to have the respondent worker re-examined by a member of the Appeal Panel.
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 which have been considered by the Appeal Panel.
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.
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.
SUBMISSIONS
The appellant employer based its appeal on two broad issues. It submitted firstly that the MA had assessed injuries that were outside the scope of the pleadings and the referral. Secondly, it was alleged that the MA had failed to provide adequate reasons.
The MAC
The MA accurately reproduced the terms of the referral. He took a detailed history of the multiple injuries Mr Outram had suffered to his shoulders, his knees, his neck and his back. Various incidents were referred to dating back to 1981.
The MA recorded a history we have referred to above. In his summary the MA said:[1]
“Mr Outram, over the course of years of employment, had multiple injuries to his shoulders, knees, neck and back. It would appear that these injuries each involved aggravation of pre-existing degenerative disease.”
SUBMISSIONS
The appellant employer
[1] Appeal papers page 25.
It was submitted that the MA had not had regard to the evidence before him, which provided a detailed history of injury. The appellant employer further submitted that the MA fell into error because he assessed injuries that had not been pleaded in the Application to Resolve a Dispute (ARD) and were not part of the referral. It was alleged that the MA had failed to account for Mr Outram’s “multiple frank and micro-traumata injuries”. The appellant employer submitted that the MA had assessed injuries which were outside the scope of both the pleadings and the referral.
We were referred to the history that the MA did take which, as we have indicated, included multiple injuries over the years. The appellant employer alleged that in addition to the “accepted gradual process injury” there were “multiple frank injuries over the years”.
The appellant employer kindly provided a table of 17 different instances where different injuries had occurred, those matters having been taken from Mr Outram’s statement. It was alleged that Mr Outram had received awards of lump sum compensation in prior proceedings for those injuries.
Additionally, the appellant employer alleged that there had been seven further injuries, and we were referred to various places in the evidence in which these additional seven episodes were mentioned.
It was alleged that the upshot of this overview of the history was that the MA had failed to take a proper history and have regard to all of the evidence before him. The appellant employer submitted:
“specifically, and without a proper history of injury, the information upon which the assessment of impairment raising from the 10 August 2020 (deemed) injury is based is flawed”[2].
[2] Appeal papers page 11.
The appellant employer noted that the MA assessed 90% of the WPI on the basis of disease injury with the remaining 10% being attributed to the deducible underlying degenerative disease. We understood that submission to mean that 100% of the assessment had been in relation to a disease, but that 1/10th was deducted pursuant to the provisions of s 323 of the 1998 Act.
The appellant employer then alleged that the MA “did not consider the report of Dr Harrington dated 11 November 2020”. Dr Christopher Harrington, Orthopaedic Surgeon, had been retained by the appellant employer as its medico-legal expert. Dr Harrington’s opinion was said to “clarify” that whilst some of the injuries were in the nature of a disease injury, others were not. Dr Harrington, whilst suggesting that the back condition was in the nature of a disease injury, the injuries to the knees, shoulders and neck were “in equal parts a reflection of frank injury, disease and micro-traumata injuries.”
We were referred to Dr Harrington’s later opinion of 18 November 2020 that WPI caused by the disease injury was 25% WPI. This was comprised of 11% WPI for the lumbar spine (with an additional 2% for scarring) and 14% WPI for the knees, shoulders and neck, from which Dr Harrington had subtracted 1/3rd (At this point in its submissions the appellant employer referred to a figure of 42%, which we had some difficulty in comprehending).
It was alleged that the MA had failed to take a proper history and therefore failed to adequately distinguish between disease, frank and micro-traumata injuries. It was argued that the MA had produced a single assessment of impairment “which absorbs impairment arising from many injuries that did not form part of the proceedings and were not the subject of the referral for assessment”.
The appellant employer then referred us to Sok v Integrated Parramatta Services PtyLtd & Inghams Enterprises Pty Ltd[3] by way of explanation of its submissions regarding micro-traumata injuries. The appellant employer noted that Dr Harrington had been briefed with that authority.
[3] [2013] NSWWCC 91 (Sok). We note that Sok was a decision of Arbitrator (as she then was) Carolyn Rimmer, and the case subsequently went to the Court of Appeal sub nom Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217.
We were then referred to Dr Harrington’s opinion about the nature of the injuries that had been suffered by Mr Outram. These were[4]:
(a) Frank injuries – car accidents, slips, trips and falls;
(b) Gradual process disease injuries in which the Respondent Worker’s employment has contributed to the development or aggravation of a disease of gradual process, and
(c) Micro traumata.
[4] Appeal papers page 12 [13].
Thus, the appellant employer argued, the MA had fallen into error by being “overly simplistic” without also accounting for the number of frank incidents and micro-traumata.
With regard to the alleged failure by the MA to provide adequate reasons, we were referred to New South Wales (NSW Department of Education) v Kaur[5] in support of the well-accepted proposition that there is an obligation on an MA to given adequate reasons.
[5] [2016] NSWSC 346 (Kaur).
It was alleged that the MA failed to provide any reasons to explain his decision not to distinguish the frank incidents and micro-traumata from his assessment of impairment. It was submitted that those injuries were not part of the pleadings or of the referral.
The respondent worker
The submissions of the respondent worker were prepared by Mr Bruce McManamey of counsel. He submitted that the claim was made by email on 10 August 2020 for 56% WPI in respect of injuries to the bilateral upper extremities, bilateral lower extremities (lumbar spine, cervical spine) and scarring. The email also referred to SAS Trustee v O’Keefe[6] which, it was submitted, made it clear that the injuries were alleged to be diseases compensable pursuant to ss 15 or 16 of the Workers Compensation Act 1987 (the 1987 Act).
[6] [2011] NSWCA 326.
Mr McManamey submitted that no issue was raised about injury and that there was a counter offer made by the insurer. Mr McManamey also submitted that the s 78 notice issued on 27 November 2020 was concerned with the injury to the right ankle.
[The s 78 notice of 27 November 2020 referred to Dr Harrington’s opinion regarding the apportionment of the nature of the injuries between disease, frank injury and micro-traumata.]
Mr McManamey referred to the ARD, noting that it was alleged that all the injuries therein named were due to multiple incidents and the nature and conditions of employment from 1976.
Mr McManamey observed that the reply did not dispute the injuries claimed and no issue was raised about the description of them, or the circumstances in which they arose.
Thus, Mr McManamey argued, the matter was referred to the MA without referral to an member to determine any dispute about injury. The referral identified accurately the injuries claimed in the ARD. The ARD claimed that the injuries were those caused by multiple incidents and the nature and conditions of Mr Outram’s employment.
Mr McManamey then addressed the proposition that an impairment results from an injury so long as the injury materially contributes to that impairment. Mr McManamey submitted that the law does not require that injury to be the sole cause of the impairment, referring to Murphy v Allity Property Management Pty Ltd[7] and Department of Education v Johnson[8].
[7] [2015] NSWWCCPD 49 (Murphy).
[8] [2019] NSWCA 321 (Johnson).
Mr McManamey also submitted that any consideration of s 323 of the 1998 Act by virtue of the nature of the injuries claimed would have to be in respect of pre-existing condition at the time that Mr Outram began work in 1976.
Mr McManamey submitted that the MA did what he was asked to do by virtue of the terms of the referral. There was no requirement for a MA to make a separate assessment of impairments that may have resulted from incidents that occurred over the period of Mr Outram’s employment, when dealing with a deemed date of injury.
Mr McManamey referred to the list of 17 incidents set out by the appellant employer which we have referred to above, contending that none of them pre-dated 1976 and therefore were not amenable to the application of s 323. Moreover Mr McManamey claimed that there had been no submission made by the appellant employer as to why the incidents identified by it did not fall within the description of the multiple incidents that had been relied on in the ARD, and in respect of which no issue had been taken.
Further, Mr McManamey submitted, no submissions had been made as to how the incidents mentioned by the appellant employer could lead to a different assessment. There was no submission that any of the incidents referred to in the appellant employer’s submissions were anything other than part of a sequence of events that constituted the injury the MA was asked to assess. There was no suggestion that any of the incidents were unrelated to the impairment resulting from the accepted injury. Each of the incidents relied on was simply an exacerbation of the developing condition of each body part, Mr McManamey argued. The incidents were thus within the second category within State Government Insurance Commission v Oakley[9], as considered in Johnson.
[9] (1990) 10 MVR 570 (Oakley) at [submissions 22].
Mr McManamey submitted that if the subsequent injury was an exacerbation of a previous injury, the impairment would result from the first injury unless it could be shown that there was a separate impairment that was unrelated to the first injury.
Mr McManamey submitted that the incidents relied on were within the second category of Oakley which had the result that the final impairment “results from all of the injuries that commenced in 1976. The appellant does not contend otherwise”.
Mr McManamey then considered the reports of Dr Harrington relied on by the appellant employer. He noted that the appellant employer’s solicitors had asked Dr Harrington to apportion between frank incidents, micro-traumata and disease conditions. Mr McManamey referred to Dr Harrington’s opinion which Mr McManamey submitted fell squarely within the second category of Oakley.
Mr McManamey also submitted that there was no impairment that could be attributed solely to the frank incidents. Applying the correct legal test, Dr Harrington’s opinion would be that the impairment assessed by him did in fact result from the disease injury.
The MA was not asked to make an apportionment of the impairment between a disease injury, frank injuries and micro-traumata, Mr McManamey noted. Thus there could be no error when the MA failed to address that question, it being irrelevant in any event. Similarly there was no requirement for the assessor to specifically refer to Dr Harrington’s reports of 11 November 2020 and 18 November 2020, as they were not relevant to the MA’s considerations.
Mr McManamey also submitted that the findings made by the MA had not been addressed by the appellant employer. In particular the appellant employer had not addressed the finding by the MA that all of the injuries referred to him had been caused by the pre-existing degenerative change. It was not suggested that the finding by the MA that the incidents involved the aggravation of a disease condition was erroneous, or was not available to the MA. No complaint was made about the degree of the impairment assessed, and the appellant employer could not point to any authority to support its proposition that the MA was under an obligation to distinguish between the nature of the injury.
Finally, Mr McManamey submitted that the appeal was not even arguable. No submissions had been made as to how the alleged failure to apportion between the incidents was a demonstrable error, “It merely says that this should have been done without saying how or why that is relevant or why it constitutes an error”.
DISCUSSION
The appeal must be dismissed
The appellant employer maintains before us that the nature of the different injuries should have been distinguished and apportioned by the MA. This is not the function of an MA.
In Jaffarie v Quality Castings Ply Ltd [10] DP Roche considered the decision from the Court of Appeal in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[11]. At [249] the learned Deputy President said:
“249 Notwithstanding the different approach by Emmett JA and Maher JA, it is my view that the following principles apply to proceedings in the Commission:
………
· (b) it is for the Commission to determine whether a worker has received an injury within the meaning of s 4 of the 1987 Act and whether there are any disentitling provisions, such that compensation is not payable for that injury”
[10] [2014] NSWWCC PD 79 (Jaffarie).
[11] [2014] NSWCA 264 (Bindah).
DP Roche considered further implications from Bindah and said at [257]:
“257 The absence of any similar provisions for ‘the nature of the injury’ points strongly to the conclusion that ‘the nature of the injury’ [in s326(1) of the 1998 Act] is a matter for the Commission to determine. This is consistent with Emmett JA’s statement at [111] that it is for the Commission ‘to determine whether a worker has suffered an injury within the meaning of s 4 of the [1987] Act’ and his Honour’s later statement (at [118]) that only ‘certain matters of causation’ (emphasis added) are within the exclusive jurisdiction of an AMS.”
The content of the referral to an MA has been recently considered by the Court of Appeal in Skates v Hills Industries Ltd.[12] Although McCallum JA dissented on the factual situation, Basten JA, Leeming JA and her Honour all upheld the primacy of the referral.[13] The Court however focussed on the actual dispute that had engendered the need for a determination by an MA. The emphasis was illustrated by McCallum JA at [83], who said:
“… I do not mean to suggest that an approved medical specialist is free to ignore the terms of the referral. However, the medical dispute referred must be the medical dispute the parties have sought to have resolved.”
[12] [2021] NSWCA 142.
[13] Basten JA at [35], Leeming JA at [49].
As was pointed out by Mr McManamey, the medical dispute referred was in fact the medical dispute the parties sought to have resolved. The injury was described in the ARD form as follows:[14]
“Description of injury
At the time of injury, the Applicant was employed by the Respondent as a Registered Nurse, situated at James Fletcher Hospital (psychiatric hospital). The Applicant was employed in this position between 1976 and 2014. The nature and conditions of the Applicant’s employment consisted of running, restraining patients and being in an overall fast paced role, which led to disease injury and an aggravation of those disease injuries.As a result of the multiple incidents and nature and conditions of his employment, the Applicant sustained the following injuries:
1. Bilateral Knees;
2. Bilateral Shoulders
3. Cervical Spine; and
4. Lumbar Spine
In accordance with the Court of Appeal Decisions SAS Trustee Corporation v O’Keefe [2011] NSWCA 326 in applying section 16(1) of the Workers Compensation Act 1987, we rely upon the date of the claim as being the deemed date of injury caused by the nature and conditions of the Applicant’s employment.”
[14] Appeal papers page 38.
The date of injury given was 10 August 2020 and it was described as a “deemed date” by virtue of the relevant box being ticked.
In the usual course of events the referral would have been circulated to the parties. The terms of the referral were unambiguous. The MA was being requested to assess the body parts referred with an indication that the date of injury was a deemed date. A deemed date catches up the provisions of s 4(b) of the 1987 Act by virtue of the provisions in ss 15 and 16 of the 1987 Act. Section 49(b) provides:
“(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and……”
Sections 15 and 16 provide relevantly:
“15 Diseases of gradual process--employer liable, date of injury etc
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
….
16 Aggravation etc of diseases--employer liable, date of injury etc
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease:
(a)the injury shall, for the purposes of this Act, be deemed to have happened:
(i) at the time of the worker's death or incapacity, or
(ii) if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
….”
It follows that the nature of the injury was clearly described in the referral, and consented to by the appellant employer. The matters that it raises are not appropriate to this jurisdiction and there was no obligation on the MA to make the analysis completed by Dr Harrington.
Dr Harrington provided three reports to the appellant employer, 15 September 2020, 11 November 2020 and 18 November 2020. Dr Harrington’s reports were comprehensive and were carefully thought out. In his report of 11 November 2020 he acknowledged the appellant employer’s request for a supplementary report and said “Please note that I have taken into consideration the legal precedence [sic] outlined for apportionment of frank injury, disease injuries and microtraumas”[15].
[15] Appeal papers page 801.
Dr Harrington noted that there was an extensive history regarding work related “micro traumas”. Dr Harrington did not explain what he meant by that term, but he said:[16]
“Whilst I’m trying to avoid sitting on the fence regarding apportionment, I believe he suffered frank injuries during the course of employment, repetitive micro-traumas and an aggravation of a disease process, all of which ultimately led to the need for knee replacements.”
[16] Appeal papers page 802.
Notwithstanding that Dr Harrington attempted to define the nature of the injuries, no such attempt was made by the appellant employer at the time when such an exercise should have taken place, that is to say before the Commission.
There was no evidence of any agreement between the parties that such an apportionment should be made by the MA, and indeed in view of the comments by DP Roche mentioned above, such an exercise would perhaps be beyond his jurisdiction.
Finally, the evidence of the aetiology of all of the events suffered by Mr Outram to the various parts of his body during the decades that he worked for the appellant employer were known to the MA. As we have noted, in his summary he was satisfied that all of the injuries before him involved the aggravation of pre-existing degenerative disease. Having seen the evidence ourselves, we concur that such is the case.
For these reasons, the Appeal Panel has determined that the MAC issued on 18 May 2021 should be confirmed.
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