Sutherland Shire Council v Bernard Fleming
[2021] NSWPICMP 103
•28 June 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Sutherland Shire Council v Bernard Fleming [2021] NSWPICMP 103 |
| APPELLANT: | Sutherland Shire Council |
| RESPONDENT: | Bernard Fleming |
| APPEAL PANEL: | Member Paul Sweeney Dr Tommasino Mastroianni |
| Dr Brian Stephenson | |
| DATE OF DECISION: | 28 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Employer appeals from certification of Medical Assessor in respect of cervical spine and both upper extremities (shoulders); where Medical Assessor (MA) assessed 2001 injury which had not been referred by the parties; where MA made no deduction pursuant to section 323 in respect of that injury; where evidence lodged by the respondent was not forwarded to the MA; Held- MA in error in assessing WPI for 2001 injury and in failing to make a deduction for that injury; MAC revoked and new MAC issued. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 18 March 2021 Sutherland Shire Council (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Yiu-Key Ho, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 19 February 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 assessment was made on the basis of incorrect criteria.
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 Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
Bernard Fleming (the respondent worker) was a long-term employee of the appellant council. He commenced employment in December 1998 and resigned on 26 March 2018 as he was unable to continue to perform his duties. The respondent was employed as a garbage truck driver.
The nature of the respondent’s work as a garbage truck driver became less physical during his period of employment. Initially, he was employed to manually collect garbage bins and empty their contents into the back of the truck. At a point of time which is not readily identifiable in the evidence, the process was automated. Thereafter, the respondent drove the garbage disposal truck and operated a joystick which controlled a robotic arm attached to the truck designed to grab, lift, and empty garbage bins. He says this was a repetitive task involving the use of his right arm.
The respondent suffered an injury to his right shoulder and neck when descending a ladder on a garbage truck in 2001. According to his statement, his foot slipped and his right arm took all of his body weight. He reported the injury and came under the care of Dr John Jacob, a general practitioner, who certified that he was unfit for work for a short time.
By his statement, the respondent says this:
“Ever since the injury in 2001 my right shoulder was easily aggravated while working and some days are better than others. I tried to persevere as long as possible but on 24 October (2005) I reached behind me to grab my seatbelt and aggravated my shoulder. I also experienced pain in my neck.”
On 8 December 2005, the respondent came to rotator cuff repair and subacromial decompression and acromioplasty under Dr Hitchen, an orthopaedic surgeon. He returned to work. He found that the nature of his work aggravated his right shoulder. He suffered significant aggravations of his right shoulder and neck pain in incidents on 28 February 2011, 24 February 2015, and 18 August 2016.
The respondent underwent a second rotator cuff repair under Professor Murrell, an orthopaedic surgeon in May 2011. Then on 23 February 2017, he came to a reverse right shoulder replacement under Dr John Trantalis at Kareena Private Hospital. He has developed symptoms in his left shoulder consequent upon the condition in his right shoulder.
By these proceedings the respondent worker claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim is based on a report of Dr Bodel, an orthopaedic surgeon who examined the respondent on 25 November 2019 and provided a report of that date to his solicitor.
Dr Bodel assessed the respondent as suffering from 27% whole person impairment (WPI). He provided three individual ratings of WPI: 20% for the right upper extremity, 7% for the cervical spine, and 2% for the left upper extremity. He made no deduction for pre-existing injury, condition or abnormality pursuant to s 323 of the 1998 Act.
Dr Panjratan, an orthopaedic surgeon, saw the respondent at the request of the appellant’s solicitors on 11 March 2020 and provided a report of 16 March 2020. Dr Panjratan assessed the respondent worker as having 5% WPI of his right shoulder. He did not assess the respondent worker’s left shoulder or neck, presumably because he did not believe the condition of either related to his employment.
The appellant, however, did not dispute that the respondent suffered injuries to his right shoulder and neck in the course of his employment and a consequential medical condition of his left shoulder related to the right shoulder injury. As there was a medical dispute as to whole permanent impairment the Registrar referred the matter to a Medical Assessor (formerly an Approved Medical Specialist or AMS), Dr Ho.
Dr Ho certified that the respondent worker suffered 30% WPI. He found 6% WPI of the cervical spine, 7% WPI of the left upper extremity, and 20%WPI of the right upper extremity. He made no deduction for a pre-existing injury condition or abnormality in respect of the respondent worker’s right shoulder. It is from this determination that the appellant 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 panel determined that it was unnecessary for the worker to undergo a medical examination by a member of the panel as requested by the appellant. The error asserted by the appellant’s solicitors largely concerns the failure to apply s 323 of the 1998 Act to the MA’s findings in respect of the respondent’s right upper extremity (shoulder). The panel was firmly of the view that a further medical examination would not provide relevant additional information in respect of that issue or advance the appellant’s case in any material way.
The panel noted that the respondent worker had provided a comprehensive statement dealing with the onset of his right shoulder symptoms and, in particular, the symptoms he experienced after the injury in 2001. The Application to Admit Late Documents lodged by the appellant contained the relatively meagre medical evidence brought into existence after the 2001 injury. There was no basis to conclude that a further physical examination of the worker by a member of the panel might shed further light on the development of his symptoms from 2001 given that he had sustained several subsequent injuries and undergone three medical procedures since the 2001 injury. In short, a further medical examination would be futile.
EVIDENCE
The panel has before it all the documents which were sent to the MA for the original medical assessment and the Application to Admit Late Documents lodged by the respondent which the Commission failed to provide to the MA.
MEDICAL ASSESSMENT CERTIFICATE
The parts of the MAC given by the Medical Assessor that are relevant to the appeal are set out where relevant in the body of the decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated here in full but have been considered by the appeal panel.
The appellant set out several grounds of appeal. First, it correctly asserted that the MA was not provided with the entirety of the evidence referred to in the referral document. He was, therefore, deprived of the opportunity to consider all relevant evidence.
Secondly, the appellant asserted that there was a demonstrable error in both the way in which the MA had dealt with the 2001 injury and in his failure to make a deduction for it pursuant to s 323 of the 1998 Act.
The MA had found an impairment rating based on the 2001 injury. That injury had not been referred for assessment. Even if it had, it could not be assessed by the WPImethod as that regime for assessing permanent impairment “only arises in respect of injuries sustained on or after 1 January 2002”.
Finally, the appellant alleged the MA erred in including the injury in 2001 as an aspect of the “nature and conditions” of the worker’s employment.
The respondent conceded that the MA did not have access to all the evidence which should have been referred to him at the time of the assessment. It suggested that the mater be remitted back to the MA to re-determine the matter or, alternatively, the panel could address the issue based on all the material submitted by the parties.
In respect of the assertion that there should be a significant s 323 deduction in respect of the respondent’s 2001 right shoulder injury, the respondent submitted that there “was no distinct injury at that time”. The respondent contended that the MA was right to approach the matter by treating the 2001 injury as but one instance of the general “nature and conditions of work category”. He continued:
“In other words, the true nature and conditions window was 1998 to 2018 and 2001 was within that time. In the AMS’s view, the injury in 2001 was not a frank injury but was part of the nature of employment.
The fact that part of causation occurred before the claim was governed by the permanent impairment approach took over the table of disabilities approach does not have the effect of rendering the 2001 injury a non-work injury, nor does it engage with s 323.
In the circumstances, either no s 323 deduction was required at all, or, if it was it was appropriate for it to be the default 10% given the limited amount of treatment required for it.”
The respondent then asserts that the 2001 “injury is not a prior injury or a pre-existing condition”. Rather, he says that it is “part of the nature and conditions which was the subject of the referral”.
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.
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 his application.
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 (Wingfoot) 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 Wingfoot, 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 Wingfoot 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).
It is common ground that the MA did not have access to the documents attached to the Application to Admit Late Documents signed by the appellant’s solicitor on 18 December 2020. Undoubtedly, that evidence is relevant to the assessment of WPI in this case. In those circumstances, it was open to the appellant to list the matter before the Registrar or an Arbitrator (of the former Workers Compensation Commission) and have it referred back to Dr Ho for reassessment on the basis of the entirety of the evidence. Alternatively, it is arguable that the MAC is a nullity. If that is the case, the Registrar could have referred the assessment of WPI to another assessor for determination. The appeal panel, however, does not have these powers.
At the preliminary conference, the panel concluded that there was demonstrable error in the MAC in the way in which the MA had characterised the 2001 injury and also in his failure to make a deduction pursuant to s 323 in respect of that injury.
As there was demonstrable error, the panel determined that it was open to it to consider the appeal on the basis of all the evidence, including the evidence which had not been referred to the MA, in accordance with the wishes of the parties. It would have been otherwise if there was no demonstrable error. In those circumstances it is difficult to see how the appeal panel could have dealt with the matter.
By a Further Amended Referral dated 29 January 2021 the delegate of the Registrar referred the matter for medical assessment of the respondent’s right upper extremity (shoulder), cervical spine and left upper extremity (shoulder). This assessment related to four discrete dates of injury on 24 October 2005, 28 February 2011, 24 February 2015, 18 August 2016 and also in respect of the “nature and conditions of employment from 1 January 2002 until March 2018”.
The MA accurately recorded the terms of referral on the first two pages of the MAC. The referral makes no reference to an injury in 2001 or to the “nature and conditions” of the respondent’s employment before 1 January 2002.
In the MAC the MA recorded a history of the 2001 injury which is similar to that contained in the respondent’s statement. He recorded that:
“He told me that the most significant injury was 2001 when he slipped off a ladder and was hanging by his right arm which took his whole entire body weight and caused injury to the right shoulder and neck. The shoulder never returned to normal but he just managed it conservatively.”
The MA returned to the aetiology of the respondent’s right shoulder condition in his “Reasons for Assessment”. He states:
“These combined together is 33% upper limb impairment which will be equal to 20% of whole person impairment. The main problem to the right arm was from injury in 2001 which was not listed in the request hence I grouped it into the nature and conditions of work category. All the subsequent injuries were minor aggravations.”
It was not open to the MA to consider an injury which was “not listed” in the referral, a document which reflected the agreement of the parties as to the nature of the medical dispute. Further, it was not open to him to attribute WPI to the 2001 injury as it occurred before 1 January 2002. Injuries occurring before 1 January 2002 are subject to an entirely different scheme for ascertaining lump sum compensation. The schemes are mutually exclusive and there is no basis to combine results obtained under the pre 1 January 2002 assessments utilising the Table of Disabilities with assessments under the post 31 December 2001 WPI regime: see the discussion of the way in which the two schemes interact in Jane Maree Hogan v. Mercy Care Centre [2014] NSWWCC 349, Senior Arbitrator Snell, as he then was on 23 September 2014.
Although the MA erred in including the 2001 injury in his assessment, it was not argued that he had otherwise erred in assessing the degree of WPI of the shoulders or the cervical spine. Further, the panel could not discern after a careful reading of the MAC any error in the way in which the MA arrived at his finding of 20% WPI in respect of the respondent’s right shoulder. If any of the listed injuries materially contributed to this loss, the appellant was liable in respect of it, subject to s 323 of the 1998 Act: see Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd [1994] HCA 68; (1994) 68 ALJR 525 at 526-7.
The critical error which affected the outcome in this case is the failure of the MA to make a deduction in respect of the 2001 injury, which in the opinion of the panel was clearly a pre-existing injury as that term is used in s 323 (1) of the 1998 Act. The panel does not accept the submission made by the respondent worker that the 2001 injury was merely part and parcel of the “nature and conditions” of the respondent’s employment.
Both before and after the decision of Neilson J in the former compensation Court in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 (28 July 1995), the use of the phrase “nature and conditions of employment” has been roundly criticised by judges and tribunal members as a “meaningless concept”. The use of the phrase has persisted because the profession find it a useful shorthand way of describing cumulative microtrauma occurring over long periods of employment. These are usually injuries that fall within ss 15 and 16 of the 1987 Act. The 2001 injury as described by the respondent and his doctors is not an example of microtrauma.
The circumstances suggest a frank injury. By his statement, the respondent says that he was symptom-free prior to the incident but had continuing problems with his right shoulder thereafter. Dr Hitchen, the respondent’s first treating orthopaedic surgeon, described it as a “significant” injury. The MA also described it as a “significant” injury. The circumstances and the medical opinion suggest that the respondent suffered a rotator cuff injury at the time from which he never fully recovered.
In the opinion of the panel, the respondent suffered a sudden and identifiable pathological or physiological change in the rotator cuff of the right shoulder at the time he slipped and took the weight of his body on his right shoulder, when descending the ladder in 2001. That must be characterised as an injury: see Military Rehabilitation and Compensation Commission v May [2016] HCA 19 (11 May 2016).
The panel next considered the extent of the deduction which should be made pursuant to s 323 in respect of the injury. While the injury in 2001 was significant, the respondent’s right shoulder was subject to numerous further strains. After the 2001 injury, the respondent continued to perform arduous work for some 17 years. He suffered three further injuries to his shoulder. Both the work and the injuries contributed to the three surgical procedures undergone by the respondent and to his final assessment of WPI.
It must be borne in mind that s 323 is a disentitling provision. While the issue of onus is rarely of importance in a medical appeal, the principles enunciated a very long time ago in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden 114 CLR 164 have application to an evaluation under s 323. That these principles are relevant to the assessment of lump sum compensation under the Workers Compensation Act is also of ancient lineage: see Sadler v Commissioner for Railways (NSW) (1969) 123 CLR 216. It is necessary for a respondent to point to appropriate evidence to support a deduction.
After careful consideration of the causative potency of the 2001 injury in the context of the full history of the insults suffered to the respondent’s right shoulder in the pleaded injuries, the panel concluded that the appropriate s323 (1) deduction for the right shoulder injury is 20%. While the panel had some doubt as to whether it was appropriate to allocate impairment to each of the five injuries referred for assessment, the approach of the MA in this respect was not criticised in the submissions and seems to reflect the intention of the parties. Accordingly, the panel proposes to deduct 20% from each of the five injuries to the applicant’s right shoulder.
While it was not specifically raised, the panel also considered the deduction made by the MA in respect of the respondent worker’s cervical spine. In this instance, the panel reached the conclusion that 10% in accordance with s 323 (2) was appropriate as it was difficult to determine the role which the 2001 injury played in respect of the respondent’s present cervical impairment. Obviously the extent of the deduction is a matter on which minds may differ, but the panel was not persuaded that it was appropriate to certify a greater figure given the evidence in the case.
While the panel accepts that there must be a deduction for the 2001 injury, there were numerous subsequent significant insults to the applicant’s neck which, cumulatively, are responsible for his present impairment. Unlike the pathology in the applicant’s right shoulder, it is difficult to isolate the pathological or symptomatic effect of the 2001 injury. Thus, while the AMS approached the application of a s323 (2) on a wrong basis in failing to make a deduction in respect of 2001 injury, the outcome is the same.
The panel determines that the respondent worker has a total of 28% WPI as a result of the injuries assessed which is comprised as follows:
(a) 17% for the right upper extremity (after a deduction of 20% for each injury),
(b) 7% for the left upper extremity, and
(c) 6% for the cervical spine.
For these reasons, the appeal panel has determined that the MAC issued on 19 February 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1. Cervical spine | 24 Oct 2005 | Page 28 Section 4.34 | Table 15.5 | 0% | 0 | 0% |
| 2. Upper Right Extremity (shoulder) | Figure 16-40, 43, 46 Table 16-27 | 6% | 1/5 | 5% | ||
| 3. Left Upper extremity | Figure 16-40, 43, 46 | 0% | 0 | 0% | ||
| 1. Cervical spine | 28 Feb 2011 | Page 28 Section 4.34 | Table 15-5 | 0% | 0 | 0% |
| 2. Upper Right Extremity (shoulder) | Figure 16-40, 43, 46 Table 16-27 | 2% | 1/5 | 2% | ||
| 3. Left Upper Extremity | Figure 16-40, 43, 46 | 0% | 0 | 0% | ||
| 1. Cervical spine | 24 Feb 2015 | Page 28 Section 4.34 | Table 15.5 | 0% | 0 | 0% |
| 2. Upper Right Extremity (shoulder) | Figure 16-40, 43, 46 Table 16-27 | 1% | 1/5 | 1% | ||
| 3. Left Upper Extremity | Figure 16-40, 43, 46 | 0% | 0 | 0% | ||
| 1. Cervical spine | 18 August 2016 | Page 28 Section 4.34 | Table 15-5 | 0% | 0 | 0% |
| 2. Upper Right Extremity (shoulder) | Figure 16-40, 43, 46 Table 16-27 | 1% | 1/5 | 1% | ||
| 3. Left Upper Extremity (shoulder) | Figure 16-40, 43, 46 | 0% | 0 | 0% | ||
| 1. Cervical Spine | 1 January 2002 until March 2018 | Page 28 Section 4.34 | Table 15-5 | 7% | 1/10 | 6% |
| 2. Upper Right Extremity (shoulder) | Figure 16-40, 43, 46 Table 16-27 | 10% | 1/5 | 8% | ||
| 3. Left Upper Extremity | Figure 16-40, 43, 46 | 7% | 0 | 7% Total WPI 18% for this injury date | ||
| Total % WPI (the Combined Table values of all sub-totals) | 28% (Please refer to impairments above for each injury date) | |||||
The above assessment is made in accordance with the Guidelines for the Evaluation of Permanent Impairment for injuries received after 1 January 2002
Paul Sweeney
Member
Dr Tommasino Mastroianni
Medical Assessor
Dr Brian Stephenson
Medical Assessor
28 June 2021
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