State of NSW (HealthShare NSW) v Echeverry
[2022] NSWPICMP 23
•16 February 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of NSW (HealthShare NSW) v Echeverry [2022] NSWPICMP 23 |
| APPELLANT: | State of NSW (HealthShare NSW) |
| RESPONDENT: | Ana Lucia Ortiz Echeverry |
| APPEAL PANEL: | Member Paul Sweeney Dr James Bodel Dr David Crocker |
| DATE OF DECISION: | 16 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Worker alleged that she suffered permanent impairment as a result of a “personal injury” caused by “nature and conditions” of her employment involving arduous work during a period of 10 years; matter referred to Medical Assessor (MA) on this basis; MA certified 17% whole person impairment and made no deduction for any previous injury; employer alleged that the MA should have made a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 in respect of frank injuries which occurred during the 10 year period of arduous work it had conceded caused personal injury; Held- it was not open to the MA to make a deduction for injuries during this period as they were not “previous injuries”; Cullen v Woodbrae Holdings Pty Ltd considered and applied; 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 23 November 2021 the State of NSW (HealthShare NSW) (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robin O’Toole, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 26 October 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 assessment was made on the basis of incorrect criteria,
· 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 grounds 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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Ana Lucia Ortiz Echeverry (the respondent) was employed as a hospital assistant at the appellant’s hospital at Tweed Heads between February 2010 and 2018. It is undoubtedly the case that her regular employment duties involved arduous physical work which would have placed strain on her shoulders. This included the pulling/pushing of trolleys containing food, loading and unloading dishwashers and handling stores.
On 18 October 2013, the respondent was assaulted by a patient at the hospital and suffered an injury to her left shoulder. She saw Dr Badawy, a general practitioner, of Mudgeeraba who treated her conservatively. After a short absence from work, she returned to her normal duties.
On 28 February 2015, the respondent experienced pain in her right shoulder while removing plates and trays from a dishwasher. She sought medical attention at the Gold Coast Hospital. The notes of that hospital record that the respondent presented with right shoulder pain and that there was “nil injury or trauma”. Thereafter, the respondent worker experienced increasing problems with her shoulders while carrying out her normal duties.
In 2017, Dr Badawy referred the respondent worker to Dr Christie, an orthopaedic surgeon. After conservative treatment failed to ameliorate her shoulder pain, Dr Christie performed an arthroscopic sub-acromial decompression and manipulation under anaesthesia of the left shoulder on 20 February 2017.
On 26 October 2017, Dr Christie performed an arthroscopic decompression of the respondent’s right shoulder. The respondent underwent intense physiotherapy and a series of steroid injections following these surgical procedures. However, her shoulder pain did not completely abate. She was provided with light duties but continued to experience pain when performing her work. The appellant employer terminated the respondent’s employment in late 2018.
In 2019, the respondent came under the care of Dr Graze, another orthopaedic surgeon, who recommended a revision acromioplasty of the left shoulder. However, she decided against undergoing further surgery. She has not returned to work.
On 2 October 2020, the respondent worker saw Dr Endrey-Walder, a general surgeon, at the request of her solicitors. Dr Endrey-Walder assessed her as suffering 29% whole person impairment (WPI). He attributed 7% WPI to an injury to the respondent’s cervical spine, 10% WPI to an injury to her right shoulder, and 14% WPI to an injury to her left shoulder. In respect of causation he said this:
“I have no doubt that the nature and conditions of her work, including specific incidents of trauma, is the main reason for her disability.”
On 19 November 2020, the respondent worker made a claim for permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The letter of claim described the respondent’s injuries as follows:
“Injury to neck and both shoulders as a result of nature and conditions of employment as a hospital assistant at the Tweed Hospital involving pushing and pulling loaded meal carts, lifting and carrying trays of meals/beverages, and loading and unloading dishwashers between 2010 and 2018.”
The appellant had the respondent examined by Dr Paul Robinson, an orthopaedic surgeon in Brisbane on 14 April 2021. Dr Robinson provided the appellant’s solicitor with a series of reports commencing with a report on 22 April 2021. In respect of the respondent’s left shoulder Dr Robinson diagnosed the following:
“The diagnosis of her left shoulder is that she sustained a soft tissue injury from an incident dating back to 2013 and requiring decompression and manipulation in 2017.”
In respect of her right shoulder, he said this:
“She also had similar symptoms unrelated to external injuries but associated with repetitive movement in the course of her employment producing again bursitis, tendonitis and resulting in operative intervention – a decompression and manipulation.”
Contrary to the opinion of Dr Endrey-Walder, Dr Robinson expressed the opinion that the respondent had not suffered an injury to her cervical spine. He assessed 8% WPI in relation to each shoulder. By a supplementary report, which is difficult to understand, Dr Robinson attempted to apportion his overall assessment of WPI between several “incidents” and the nature and conditions of the respondent’s work. He also expressed the opinion that there was “a constitutional” element to the respondent’s pathology which affected both shoulders.
On 15 July 2021, the respondent lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission). It claimed the sum of $80,800 pursuant to s 66 of the 1987 Act for 29% WPI in accordance with Dr Endrey-Walder’s assessment. The “Injury Details” in the ARD described the type of injury as “Personal”. It particularised the date of injury as between 15 February 2010 and 29 September 2018. It described the injury as follows:
“Injuries of left and right shoulders as a result of the nature and conditions of employment from 15 February 2010-29 September 2018 involving the pushing and pulling of loaded meal carts, lifting and carrying trays of meals/beverages, and loading and unloading dishwashers.”
By a s 78 Notice dated 24 June 2021, the appellant disputed the respondent’s claim. It denied that the respondent had suffered an injury to her neck/cervical spine arising out of or in the course of her employment. It asserted that the respondent suffered discrete injuries to the left shoulder on 18 October 2013 and 15 October 2016 and to the right shoulder on 28 February 2015 and 29 September 2018. For reasons that are unclear, the appellant asserted, contrary to longstanding authority, that the separate injuries in respect of the left shoulder could not be aggregated or assessed together. It also stated that it was impermissible to “assess permanent impairment based upon a single date of injury”.
The matter came on for a telephone conference before a member of the Commission on 13 August 2021. At that telephone conference the respondent discontinued the claim in respect of permanent impairment of the neck/cervical spine. The claim in respect of the respondent’s right upper extremity (shoulder) and left upper extremity (shoulder) was referred to an MA to resolve a dispute as to the impairment of those body parts:
“As a result of the nature and conditions of the applicant’s employment with the respondent between 15 February 2010 and 29 September 2018 (deemed date of injury 29 September 2018).”
These orders were made by consent.
Dr O’Toole was appointed by the President to assess the medical dispute as to the degree of WPI of the respondent’s extremities (shoulders). On 26 October 2021, he issued a MAC in which he certified the respondent suffered 8% WPI of the right upper extremity and 9% WPI of the left upper extremity. Aggregating these figures gave rise to a total WPI of 17%. It is from this certification that the appellant employer appeals.
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.
As a result of that preliminary review, the appeal panel determined that it was unnecessary for the worker to undergo a further medical examination. The panel noted that there is no criticism of the manner in which the MA examined the respondent or of the methodology he applied to determine WPI. The sole contention of the appellant employer is that the MA failed to make any deduction for a pre-existing condition or abnormality in accordance with s 323 of the 1998 Act.
The panel concluded that a further medical examination would not assist in determining whether there should be a deduction for previous injuries as asserted by the appellant employer or the quantum of any such deduction. As the respondent’s medical history is well documented in the evidence before the panel, a further consultation with her would serve no good purpose.
EVIDENCE
The appeal panel has before it all the documents that were sent to the MA for the original assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the MA which are relevant to the appeal are set out in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel.
In summary, the appellant submitted that the MA was in error in failing to apply s 323 of the 1998 Act to the facts as found and make a deduction from the assessment of WPI which he certified in the MAC.
According to the appellant employer, the MA recorded a clear history of injury on four occasions. They were:
(a) injury to the left shoulder in 2013 when the respondent was assaulted by a patient;
(b) injury to the right shoulder on 28 February 2015, when she pulled out a tray from a dishwasher;
(c) injury to the left shoulder in May 2018 whilst loading a dishwasher, and
(d) Injury to the left shoulder when carrying cups of water on 29 September 2018.
The submission then summarises the medical evidence, particularly that of the treating orthopaedic surgeon Dr Christie, asserting:
“The above evidence discloses the worker experienced separate and discrete injuries to her left shoulder in October 2013, May 2016 and on 29 September 2018, and an injury to her right shoulder in February 2015”.
As the ARD only asserted injuries between 15 February 2010 and 29 September 2018, the “prior” injuries particularised required the MA to make a s 323 deduction. The respondent’s submission continued:
“Although the prior injuries listed in paragraph “c” above fall within the period of the “nature and conditions” of employment injury (between 15 February 2010 to 29 September 2018), they represent an (sic) discrete frank injuries. The appellant employer submits that these injuries are separate to the “nature and conditions” of employment injury that was the subject of the MA referral.”
The appellant employer refers to the reasoning of the Court of Appeal in Rail Services Australia v Dimovski [2004] NSWCA 267 (Dimovski) for the proposition that a “frank injury” cannot be subsumed in an allegation of injury caused by the nature and conditions of employment for the purpose of assessment of permanent impairment.
The appellant submitted that the injuries which it characterised as discrete and separate incidents required a deduction to be made of greater than the one tenth provided for by s 323(2) of the 1998 Act. It referred to the Guidelines for the purposes of describing the way that deduction should be made. The appellant also referred to the evidence of Dr Robinson, who assessed various percentages in respect of each of the injuries. It concluded by stating that:
“The respondent submits that the MA was tasked to assess permanent impairment to both shoulders resulting from injury caused by the nature and conditions of employment. This is a separate injury to the prior documented frank injuries to both shoulders. The MA failed to adequately consider whether any of the prior documented frank injuries contribute to the worker’s overall impairment and, if so, make a deduction accordingly.”
By her submissions the respondent observed that the allegation made in the ARD was not a bare assertion of nature and conditions but rather involved the nature and conditions of employment over a specific period “involving the pushing and pulling of loaded meal carts, lifting and carrying trays of meals/beverages, and loading and unloading dishwashers”. She continues:
“The appellant conceded injury as pleaded and as referred by the MA to assess any WPI flowing from that preferred injury and it is that injury that the MA correctly assessed. The appellant consented to referral to the MA for an assessment of WPI caused by “nature and conditions of employment from 15 February 2010-29 September 2018 involving the pushing and pulling of loaded meal carts, lifting and carrying of trays of meals/beverages, and loading and unloading dishwashers.”
The respondent states that the appellant had the opportunity at the telephone conference to dispute this description of the respondent’s injury but it chose not to do so.
The respondent submitted that on the history recorded by Dr O’Toole there was no basis to apply a deduction pursuant to s 323. The submission analysed the history recorded by Dr O’Toole and noted that it recorded that she was experiencing right arm pain in 2015 “putting a large tray into a commercial dishwasher” and left shoulder pain in May 2016 “again loading a dishwasher”. The respondent concluded thus:
“It is clear from at least the beginning of 2015 to 29 September 2018 that the respondent’s work activity between those two dates involved the very task she relied on in the ARD, that is work involving ‘the pushing and pulling of loaded meal carts, lifting and carrying of meals/beverages, and loading and unloading dishwashers.’ It was while carrying out such tasks between those dates that the respondent experienced pain due to bilateral shoulder injury caused by that activity requiring specialist treatment including surgery.”
FINDINGS AND REASONS
Section 328(2) of the 1998 Act provides that an 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. This subsection was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 (11 December 2013). Davies J considered that the form of the words used in s 328(2) of the 1998 Act ‘the grounds of appeal on which the appeal is made’ was intended to convey that the appeal is confined to those particular demonstrable errors identified by a party in its submissions. The panel has only considered those grounds specifically raised by the appellant in her application.
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.
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW [2008] NSWCA 116. An appeal by way of review may, depending upon the circumstances, involve either a hearing de novo or a rehearing. Such a flexible model assists the objectives of the legislation. However, in Versace vAustralia Best Tyres & Auto Pty Limited [2016] NSWSC 1540 (2 November 2016) Schmidt J, held that the 1998 Act did not permit the panel to review the determination of the MA without first identifying error.
Though the power of review is far ranging it is nonetheless confined to the matters which can be the subject of appeal. Section 327(2) of the 1998 Act restricts those matters to the matters about which the medical assessment certificate is binding.
In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the MA to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak 88 ALJR 52 (Kocak) that it is only necessary for the MAC to explain the actual path of reasoning of the MA in sufficient detail to enable a court or an appeal panel to determine whether there is error in its findings. In Kocak, it was said that:
“The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”
The reasoning in Kocak has been applied to medical assessments under the NSW Workers Compensation legislation: see, for example El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014).
Nature and conditions
The use of the phrase “nature and conditions of employment” is of longstanding. On numerous occasions judges and members of the Presidential Unit have cautioned against its use in pleadings. In Mirkovic v David Holdings Pty Ltd; David Holdings Pty Ltd v Mirkovic (1995) 11 NSWCCR 656 (28 July 1995), his Honour Judge Neilson in the former Compensation Court said this:
“The phrase "nature and conditions of employment" is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as "quaint." My colleague Burke J has repeatedly referred to it as a "meaningless concept". It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or micro traumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The "microtraumata" contention was that advanced by the worker on review.”
More recently in Hua v Freedman Electronics Pty Ltd [2011] NSWWCCPD 60 (28 October 2011), Deputy President Roche said this at [68]:
“Third, the pleadings filed by the worker’s former solicitors are completely meaningless. They allege that Ms Hua suffered injuries as a result of “the nature and conditions of the employment from 01/01/2000 to date and continuing. The Commission has repeatedly held that such pleadings are worthless. The profession is reminded that, if it is alleged that a worker received injury because of activities over time, such as repetitive lifting, that allegation should be made clear in the Application to Resolve a Dispute and in the particulars in support of the initial claim for compensation. The claim should also state if the injury is alleged to be a disease injury under s.4(b)(i) or 4(b)(ii) of the 1987 Act, or if it is a personal injury under 4(a) of that Act.”
By her pleadings, the respondent worker identified with some precision the employment activities on which she relied to establish injury. She also clearly identified that these activities caused “personal injury” and, therefore, did not constitute an injury which “consists in” the aggravation etc of a disease: see the discussion of Hodgson JA at [68] of Dimovski.
There is ample support in the medical opinion evidence from Dr Endrey-Walder and Dr Robinson for the allegation that the respondent worker suffered an injury due to the nature of her work over a period of eight years. It is not apparent from the consent orders issued by the Member following the telephone conference that the appellant quibbled with the fact that the respondent worker suffered injury by repetitive micro trauma throughout her employment. Plainly, it conceded liability for such an injury. It is also apparent from the appellant’s submissions that it accepts that there was such an injury. It argues, however, that there were a number of intervening frank incidents during the respondent worker’s employment which also resulted in injury.
it is often difficult to delineate the boundary between repetitive micro trauma and a “frank incident”. The respondent’s description of the cause onset of her shoulder symptoms is consistent with her assertion that they were caused by repetitive actions rather than a frank incident. It is true, that the first of the incidents described by the respondent worker, namely the assault by a patient, can only be described as a frank injury. However, in the opinion of the panel that fact does not assist the appellant employer.
In Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 146 (28 September 2015) (Cullen) Beech-Jones J in the Supreme Court reminded the profession that for a deduction to be made pursuant to s 323, an injury or condition had to be “pre-existing”. At [57] the Judge said this in quashing the decision of the MAP:
“Overall, the approach of the MAP was to treat a pre-existing condition as a condition that existed outside the course of employment whereas in this case it had to be a condition that existed prior to Mr Cullen’s employment.”(panel’s italics)
Each of the alleged “discrete and separate” injuries for which the appellant employer argues a deduction should be made pursuant to s 323 fall within the period during which it conceded the respondent worker suffered “personal injury”. Patently, none of those injuries are pre-existing. Each of the injuries relied on occur after the first date on which the parties agreed at the telephone conference that the respondent suffered personal injury by during her employment by repetitive micro trauma.
In these circumstances, it was not open to the MA to make a deduction pursuant to s 323 as there were no pre-existing injuries that would ground such a deduction. It may have been otherwise if the injury alleged “consists of” the aggravation of a disease and s 16 applied. In that event the injury would be deemed to have occurred at the date of claim and injuries that occurred either during the worker’s employment or outside her employment before the deemed date of injury may be the subject of a deduction.
The panel accepts that there is a degree of controversy in respect of this issue. However it is unnecessary to pursue it further in this case. The appellant employer has not proven that the pleadings should be treated as a case of a disease falling within s 16 as opposed to one of repetitive micro trauma giving rise to personal injury to apply the classifications adopted by Neilson J in Mirkovic.
It was undoubtedly open to the appellant employer to argue before the Member that there were a series of frank injuries in this case as well as a period of nature and conditions and that these incidents gave rise to a question of aggregation of several incidents. However, an acceptance of that argument may not have advanced the appellant’s case.
Contrary to the appellants s 78 Notice, it is crystal clear that a worker can rely on a number of separate injuries to establish a loss, incapacity or impairment. That principle is of long standing. It was stated with great clarity by the High Court of Australia in Accident Compensation Commission v C E Heath Underwriting & Insurance (Aust) Pty Ltd (1994) 68 ALJR 525 and recently reiterated by the Court of Appeal in Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (12 April 2021).
It was clearly open to the MA to treat the language of the referral as one that involved the assessment of WPI flowing from the employment activities of the respondent worker in pushing and pulling and loading and unloading and other physical aspects of her employment during the period 2010 to 2018. In certifying impairment resulting from this injury, he has complied with the terms of the Referral.
The MA did not err in failing to make a deduction pursuant to s 323 for injuries which occurred during the period of employment which the parties agreed caused injury to the respondent’s shoulders. The section only permits a deduction in respect of previous injuries and conditions. Error has not been proven and the appeal must be dismissed.
For these reasons, the appeal panel has determined that the MAC issued 26 October 2021 should be confirmed.
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