Townsend v L & M Pittari Transport Pty Ltd
[2023] NSWPICMP 387
•10 August 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Townsend v L & M Pittari Transport Pty Ltd [2023] NSWPICMP 387 |
| APPELLANT: | John Townsend |
| RESPONDENT: | L & M Pittari Transport Pty Limited |
| Appeal Panel | |
| MEMBER: | Paul Sweeney |
| MEDICAL ASSESSOR: | John Brian Stephenson |
| MEDICAL ASSESSOR: | Gregory McGroder |
| DATE OF DECISION: | 10 August 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; worker alleges error by Medical Assessor (MA) in making a deduction of 30% pursuant to section 323(1); evidence established long-standing pre-existing osteoarthrosis in shoulder joint which contributed to the impairment of worker’s right upper extremity; Vannini v Worldwide Demolitions Pty Limited considered; Held – that it was open to the MA to make a deduction of 30%; error not established; Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 May 2023, John Townsend (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 April 2023.
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, and
· 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.
Rule 128 of the Personal Injury Commission Rules 2021 (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
The appellant was formerly employed by L & M Pittari Transport Pty Limited (the respondent) as an interstate truck driver. It is evident from his written statement that this work involved considerable physical effort prior to and after an interstate journey.
On 19 November 2020, while on such a journey, the appellant attempted to stabilise a pallet of wine on his vehicle by pushing the cartons of wine into a stable position when he suffered an injury to his right shoulder.
Following the injury, the appellant experienced increasing pain and restriction of movement in his shoulder. He sought treatment from his general practitioner, Dr Lalani Ranasinghe of Griffith. He underwent X-ray and ultrasound of the right shoulder.
When conservative treatment, including physiotherapy and steroid injection, did not improve the range of movement of his right shoulder, the appellant was referred to Dr Morgan Prince, an orthopaedic surgeon.
On 4 June 2021, Dr Prince performed a right shoulder replacement at the Calvary Prince Hospital.
While the appellant has regained a satisfactory range of movement since surgery he has continued to experience some pain in the region of the shoulder and has been unable to return to the full duties of an interstate truck driver.
By his evidentiary statement the appellant lists a number of disabilities that he suffers as a result of the injury including pain, stiffness, and restricted movement in his right shoulder and neck.
On 8 June 2022, the appellant saw Dr Graham Doig, an orthopaedic surgeon, at the request of his solicitor for the purposes of assessing permanent impairment. Dr Doig expressed the opinion that the appellant suffered 21% whole person impairment (WPI) as a result of the injury. As there was “pre-existing degeneration” at the shoulder he made a 10% deduction for the pre-existing condition and assessed 19% WPI.
On 12 October 2022, Dr Miniter, an orthopaedic surgeon saw the appellant at the request of the respondent’s solicitors. Dr Miniter expressed the opinion that the appellant had permanent impairment in accordance with AMA5 and the Guidelines of 22%. However, he thought that any contribution to the appellant’s osteoarthritic shoulder “was minimal and short-lived”. He thought the entirety of the impairment was due to “pre-existing issues”.
As the respondent conceded liability for the appellant’s injury, the difference of opinion between Dr Doig and Dr Miniter as to WPI gave rise to a medical dispute as that term is used in s 319 of the 1998 Act.
A delegate of the President referred the dispute for assessment by Dr Anderson. It is from his MAC that the appellant brings this appeal.
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 Procedural Direction PIC7.
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 neither party sought a re-examination of the worker by a member of the panel. As the only issue in dispute is the quantum of the deduction made by the Medical Assessor pursuant to s 323 of the 1998 Act, a re-examination would not assist the panel in determining the medical dispute. Further, as the panel were unable to find error in the assessment, the case law instructs that a further examination is inappropriate.
EVIDENCE
The Appeal Panel has before it all the documents which 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 in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
By its submissions the appellant referred to the case law dealing with demonstrable error including the decisions of Merza v Registrar of the Workers Compensation Commission[1] and Marina Pitsonis v Registrar of the Workers Compensation Commission.[2] He also referred to the recent decision of Griffiths AJ in Secretary, Department of Communities & Justice v Lewandowski[3] and the decision of Schmidt J in Cole v Wenaline Pty Limited.[4]
[1] [2006] NSWSC 939 (Merza).
[2] (2006) 67 NSWLR 372 (Pitsonis).
[3] [2023] NSWSC 34.
[4] [2010] NSWSC.
The appellant submitted that an analysis of the MAC led to the conclusion that prior to the subject injury the appellant “had a completely symptom free right shoulder” and was performing “physically demanding” work. The appellant continued:
“It is respectfully submitted that Assessor Anderson has fallen into error. Given there is a complete lack of evidence of any symptomatology prior to the injury it would be open for the Appeal Panel to apply a 10% deduction to the impairment assessed.”
The appellant submitted that only two conclusions were available to the Medical Assessor in making a deduction. These were “no deduction or a deduction of 10%”.
The appellant also submitted that the Medical Assessor failed to properly engage with s 323. He continued:
“It is respectfully submitted that his opinion is limited to stating that one-tenth is too little, 100% is too much (as per Dr Miniter) and that he is therefore persuaded that a deduction of one-third is ‘more realistic and (a) fairer deduction.”
In conclusion, it submitted that the appeal panel should determine that there should be no deduction for pre-existing condition or “perhaps a reduction of 10%”.
By its submissions the respondent also referred to the long line of Supreme Court cases which now address s 323 including Cole, Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation)[5] and Cullen v Woodbrae Holdings Pty Limited.[6]
[5] [2013] NSWSC 365.
[6] [2015] NSWSC 1416.
The respondent submitted that in this case there was radiological evidence of extensive pre-existing changes in the right shoulder. Both Dr Doig and Dr Miniter accepted that these changes contributed to the appellant’s permanent impairment. The difference of opinion between those doctors which gave rise to the medical dispute was the extent to which those pre-existing changes contributed to the appellant’s WPI.
The respondent argued that:
“The MA refers to the pre-existing condition consistently throughout the MAC as a constant thread of evidence piecing together and substantiating the rationale for his 13% WPI findings after the one-third s 323 deduction is taken into account.”
It argued that there was no doubt in the light of the authorities and the evidence that such a deduction was open to him and that no grounds of appeal had been made out.
DISCUSSION & FINDING
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 sub-section was considered by Davies J in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales, 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 Appeal Panel has only considered those grounds specifically raised by the appellant in his application.
In Campbelltown City Council v Vegan,[7] 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.
[7] [2006] NSWCA 284 (Vegan).
The role of the medical appeal panel was considered by the Court of Appeal in Siddik v WorkCover Authority of NSW.[8] 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 v Australia 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 Medical Assessor without first identifying error.
[8] [2008] NSWCA 116.
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 MAC is binding. In considering the submissions of the appellant, it is necessary to bear in mind the nature of the statutory obligation of the Medical Assessor to provide reasons. It is evident from reasoning of the High Court of Australia in Wingfoot Australia Partners Pty Ltd V Kocak[9] that it is only necessary for the MAC to explain the actual path of reasoning of the Medical Assessor 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.”
[9] [2013] HCA 43.
The reasoning in Wingfoot has been applied to medical assessments under the NSW Workers Compensation Legislation; see, for example, El Masri v Woolworths Ltd.[10]
[10] 2014] NSWSC 1344.
The appellant does not criticise the methodology by which the Medical Assessor determined that he suffered 20% WPI as a result of the injury. It was then incumbent upon the Medical Assessor to determine whether any proportion of that impairment was due to a previous injury or pre-existing condition or abnormality.
The Medical Assessor dealt with the presence and nature of a pre-existing condition at several points in his MAC. In his summary of injuries and diagnoses, he states:
“The radiological investigations soon after this event demonstrated extensive degenerative changes in the glenohumeral joint complex. These had been pre-existing and were badly aggravated by his event to such an extent that the only realistic option open to his treating orthopaedic surgeon was to perform a total shoulder replacement. This went ahead and has given him a very good result.”
Having concluded that there was a pre-existing condition, the Medical Assessor considered the competing opinions of the medical specialists on this point. He noted that both doctors had made a deduction, although the deduction by Dr Doig had been made pursuant to s 323(2). He reasoned that Dr Miniter’s deduction was excessive and that Dr Doig’s deduction of 10% was inappropriate given the “clinical and particularly the radiological information”.
The Medical Assessor then gave the following reasons for make a deduction of one third:
“Attention is drawn to the extensive degenerative changes in the right glenohumeral joint. These have been extensively demonstrated by the radiological investigations shortly after this event. I have already indicated that a deduction of one-tenth is at odds with this information. I am therefore persuaded that a deduction of one-third due to the pre-existing degenerative changes is a more realistic and fairer deduction.”
In the opinion of the panel, there can be no doubt that the Medical Assessor squarely answered the question of what proportion of the impairment was due to previous injury or pre-existing abnormality in accordance with s 323(1) of the 1998 Act.
The existence of significant pre-existing degenerative changes in the appellant’s right shoulder is beyond dispute. Dr Doig refers to this condition as a “pre-existing, primary, idiopathic osteoarthritis of the glenohumeral joint”. The MRI scan of 15 January 2021 refers to it as glenohumeral degenerative joint disease. There can be no doubt that, if the appellant did not have advanced pre-existing osteoarthritis in his shoulder at the time of the incident at work, he would not have come to shoulder replacement surgery. The opinion of Dr Prince, the appellant’s treating doctor is instructive in this regard. In a report of 5 May 2021,
Dr Prince stated:“Essentially John’s problem with his shoulder is a background of osteoarthrosis that has not recovered following an injury at work. I would say around two thirds to three quarters of his current symptoms would be caused by the pre-existing age-related change. Most arthritic conditions are a combination of genetic factors and personal predisposition and then added to by repeat injuries either through work or sporting activities. John’s pre-existing arthritis will be partly due to his heavy work and lifestyle activities, but the majority of the reason for his shoulder being arthritic is not work-related. Essentially John’s shoulder had degenerated to the point that was a little bit on a knife edge, he then had to push a heavy pallet of wine back into position, he had a relatively small tendon tear but in the setting of established arthrosis, that has made the difference for him being able to function in the workplace and now he is unable to. The work-related aggravation had ceased, but the symptoms have persisted because his shoulder is now no longer up to tasks in terms of moving and restraining loads in the truck bed, getting in and out of the cab as well as driving for extended periods of time.”
In that passage, Dr Prince sets out the rather complex reasons why both the pre-existing condition and the injury have contributed to the impairment in this case. It demonstrates why the conclusion of the Medical Assessor that a deduction of 10% pursuant to s 323(2) is inconsistent with the medical evidence is undoubtedly correct. It also demonstrates that the Medical Assessor’s deduction pursuant to s 323 was plainly available on the evidence.
The fact that the appellant’s shoulder was asymptomatic prior to the injury at work is obviously a relevant matter when considering a deduction for a pre-existing condition. However, as the case law demonstrates, it is not decisive. Further, it is quite clear in the circumstances of this case that the Medical Assessor took those circumstances into account in making a deduction.
Once it is accepted that a deduction must be made, the issue of the degree of the deduction is a matter of fact and degree. In Vannini v Worldwide Demolitions Pty Limited,[11] Gleeson JA said at [92]:
“The position may be different in relation to this second question. A finding as to the proportion of permanent impairment due to the 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.”
[11] [2018] NSWCA 324 (17 December 2018).
For these reasons, the Appeal Panel has determined that the MAC issued on 4 April 2023 should be confirmed.
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