Ung v Brambles Industries Limited
[2023] NSWPICMP 503
•9 October 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Ung v Brambles Industries Limited [2023] NSWPICMP 503 |
| APPELLANT: | Seyhaun Ung |
| RESPONDENT: | Brambles Industries Limited |
| APPEAL PANEL | |
| MEMBER: | Carolyn Rimmer |
| MEDICAL ASSESSOR: | Alan Home |
| MEDICAL ASSESSOR: | John Brian Stephenson |
DATE OF DECISION: | 9 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for permanent impairment of the lumbar spine in respect of an injury on 23 February 2017; MA deducted one tenth pursuant to section 323 in respect of an injury with the respondent in 2011; Panel did not accept that the injury was an injury caused by the nature and conditions of employment from 2009 to 23 February 2017; MA was correct to find the worker had a pre-existing condition and make a deduction in respect of that injury; Held – Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 3 July 2023 Seyhaun Ung (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 5 June 2023.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 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 ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND RELEVANT FACTUAL BACKGROUND
The appellant sustained an injury to lumbar spine in the course of his employment on
23 February 2017.The matter was referred to the Medical Assessor, Dr Tim Anderson, on 29 March 2023 for assessment of whole person impairment (WPI) of the lumbar spine with the date of injury being 23 February 2017.
The Medical Assessor examined the appellant on 25 May 2023 and assessed 15% WPI of the lumbar spine. The Medical Assessor made a one-tenth deduction pursuant to s 323 of the 1998 Act in respect of the assessment of the lumbar which resulted in a combined total assessment of 14% WPI in respect of the injury on 23 February 2017.
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.
The appellant did not request that he be re-examined by a Medical Assessor who is a member of the Appeal Panel.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient evidence on which to make a determination.
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. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions included the following:
(a) The appellant was employed by the respondent since 2009. In or about 2011, he suffered an injury to his lumbar spine as a result of a twisting and bending incident and experienced severe back pain with spasm. He had time off work, but eventually resumed his pre-injury duties. Liability for that injury was accepted by the respondent’s insurer. On 23 February 2017, the appellant suffered a recurrence of his symptoms while operating a forklift. The history obtained and recorded by the Medical Assessor was not consistent with the appellant’s statement, nor with the reports from Dr Dan or Dr Assem.
(b) The appellant relied on the medico-legal opinion of Dr Assem set out in his report dated 13 April 2022. Dr Assem considered that the appellant’s injury on 23 February 2017 was a recurrence of the original injury in 2011. Dr Assem made no deduction for a pre-existing condition or injury, explaining that “his back complaints are the result of his work activities with Chep Australia from 2009 until the present time”.
(c) The present claim was a claim of injury caused by the nature and conditions the appellant’s work activities since 2009 and included the incident in 2011. Following the 2011 injury, the appellant took time off work but eventually resumed his normal pre-injury duties. The appellant’s evidence suggested that there were persistent symptoms since 2011. When the claim was made, the appellant relied on the opinion of Dr Assem to support the claim for permanent impairment.
(d) The date of injury pleaded in the Application to Resolve a Dispute (ARD) of 23 February 2017 was a deemed date, being the date identified as when the disc lesion occurred. In the alternative, the injury is a disease which has progressed over time, with the initiating incident being the one in 2011.
(e) The respondent was well aware of the nature of the claim and that the injury was caused by the nature and conditions of employment which included the earlier injury. Liability for the 2011 injury was accepted. The injury occurred with the same employer.
(f) The nature and conditions/disease claim was addressed by Dr Dan who provided a medico-legal opinion for the respondent. The questions posed to Dr Dan and the answers provided by Dr Dan in his report dated 11 February 2021 demonstrated that the respondent was aware of the claim being made by the appellant.
(g) It is anticipated that the respondent will submit that the referral and the ARD identify a single date of injury and there was no mention of either a disease or nature and conditions of employment or the earlier injury in 2011. In response, the appellant relies on the Court of Appeal judgment of Skates v Hills Industries Ltd (Skates) [2021] NSWCA142 in support of the submission that it is the “medical dispute” that is determinative of what is in issue between the parties, not the referral to the Medical Assessor. Skates concerned a worker who had made a claim in respect of an injury which occurred on 7 June 2013 to his left wrist, left ring finger and scarring. Liability was accepted for all of those injuries. The former Workers Compensation Commission made a referral to the Medical Assessor requiring assessment of the left upper extremity, described as the joint ring finger, and scarring. There was no reference to the left wrist. The employer/insurer conceded that the left wrist had been incorrectly omitted from the referral. The Appeal Panel ignored the concession and the matter came before her Honour, Justice Adamson for judicial review. Her Honour set aside the decision of the Appeal Panel on the basis that its determination that the Medical Assessor was not entitled to go outside the terms of the referral despite the concession of error by the respondent in those proceedings. The Court of Appeal ultimately referred the matter back to the President of the now Personal Injury Commission (Commission) or referral for an assessment of the left upper extremity which was to include the left wrist, because it concluded that what constituted the “medical dispute” was determinative rather than the body parts referred to in the referral.
(h) Skates represented a departure from the view that the Medical Assessor was bound by the referral. Importantly, both Leeming and McCallum JJA stated in Skates that what is referred for assessment by a Medical Assessor is the “medical dispute” not body parts, and that was why, in that case, the matter could be referred back for re-assessment, because the parties were aware that the medical dispute included the left wrist.
(i) The medical dispute in the present matter was the claim for permanent impairment resulting from injury to the lumbar spine caused by the nature and conditions of his employment with the respondent from 2009 to 23 February 2017.
(j) The assessment – the Medical Assessor set out the history related to the onset of symptoms in respect of the 23 February 2017 and recorded that the present symptoms in the MAC, being lower back pain, which can have sudden and severe episodes. He recorded that there was radiation down the left leg. The Medical Assessor noted at page 3 of the MAC that the appellant had:
“a similar episode which is reported to have occurred in 2011. The history of this is not very clear, although seems to be associated with lifting crates up and onto hooks on a chain, very similar to what he described was the origin of this most recent episode. This event occurred at the same workplace.”
(k) On examination, the Medical Assessor found evidence of radiculopathy. The Medical Assessor was of the view that there was “previous dysfunction of his lower back in 2011 with similar features down the right leg, which had him off work for about a year.” The Medical Assessor assessed 15% WPI resulting from the work injury and he then deducted one-tenth for the 2011 injury. The Medical Assessor identified the 2017 injury as a “further aggravation of this previous underlying event and this became sufficiently extensive to warrant the more recent surgical procedure.”
(l) There ought not to have been any deduction for a pre-existing condition or abnormality or previous injury, because the previous injury in 2011 was causally related to the later injury on 23 February 2017, either as the initiating incident in respect of the disease process/nature and conditions, or the initiating incident that the later incident on 23 February 2017 acted upon to make worse resulting in the need for surgery, identified as a recurrence of the 2011 injury by Dr Assem, and by the Medical Assessor at MAC.
(m) The Medical Assessor made an error in considering whether a deduction ought to be applied, when he failed to consider the second proposition of the principles in respect of causation as set out in State Government Insurance Commission v Oakley 1990) 10 MVR 570; [1990] Aust Torts Reports 81-003 (Oakley). The Medical Assessor failed to consider whether the further recurrence causing additional damage was causally related to the original injury in 2011. This constituted an error.
(n) The Medical Assessor also failed to consider all of the evidence before him which signified to him that the date of injury of 23 February 2017 was a deemed date representing the “nature and conditions of work since 2009 to 23 February 2017”, or a deemed date of injury representing a disease which included the earlier date of injury of 2011. The evidence before him included the medico-legal opinions of Dr Dan and Dr Assem who deal with the causation issue and identify the 2011 injury as the initiating event. Dr Assem identifies the 2017 injury as a “recurrence”.
(o) These errors constituted demonstrable errors. They also demonstrate that the assessment was not made on the basis of incorrect criteria.
(p) The Appeal Panel ought to find error, revoke the MAC and substitute it with a MAC that certifies the appellant as having 15% WPI resulting from the deemed date of injury of 23 February 2017.
The respondent’s submissions included the following:
(a) The referral to the Medical Assessor was made on 29 March 2023 and noted the following:
“Date of Injury: 23 February 2017
Body part/s referred: Lumbar spine
Method of assessment: Whole person impairment.”
(b) In the MAC dated 5 June 2023, the Medical Assessor obtained the following history in relation to the earlier injury:
“Attention is drawn to a similar episode which is reported to have occurred in 2011. The history of this is not very clear, although seems to be associated with lifting crates up and onto hooks on a chain, very similar to what he described was the origin of this most recent episode. This event occurred in the same workplace. I was unable to find any details about this in the file and Mr Ung was unable to give me any further details. My understanding is that he was off work for about a year following this event and then was able to get back to his normal duties.”
(c) Regarding the specific onset of complaints on 23 July (sic) 2017, the Medical Assessor reported the following in the MAC:
“Mr Ung related that on 23 July 2017, he had been hitching plastic crates, which were coming down a conveyor, up onto a chain hook system so that they could then go through a washing procedure. He did this, he experienced severe and sudden lower back pain.”
(d) In providing a 1/10th deduction, the Medical Assessor reported the following in the MAC of 5 June 2023:
“Attention is drawn to the previous situation of 2011 when he had lower back pain radiating down his right leg. This kept him off work for about a year. It therefore looks as though the event in 2017 was probably a further aggravation of this previous underlying event and this became sufficiently extensive to warrant the more recent surgical procedure. This is therefore a 1/10th deduction.”
(e) In Skates, the court determined that the Medical Assessor is bound by the terms of the referral, unless the terms do not reflect the agreement of the parties. The appellant has not once advanced a claim for compensation as a result of the nature and conditions of employment, which was now being submitted in the current appeal. Similarly, there was no determination made by the Commission or a concession by the respondent as to the injury subject to the current proceedings being that of a “disease” or as a result of “nature and conditions”. The claim pleaded was and has always been that of a specific incident which occurred on 23 February 2017.
(f) In the ARD filed on 22 February 2023, the date of injury was noted to be 23 February 2017 (not deemed). Of significance, the appellant pleaded the injury as a “personal injury”, and it was not indicated that the date of 23 February 2017 was a deemed date. The mechanism of injury was pleaded as follows:
“On 23 February 2017, during the course of his ordinary employment duties, the applicant was required to take stacks of crates off a conveyor belt, and hook them onto a line every 2-3 seconds, which comprised of repetitive pushing, bending, twisting and squatting movements. Whilst doing so, the applicant’s back gave out and he was unable to straighten it. As a result, the applicant sustained a permanent injury to his lumbar spine.”
(g) There was no indication in the current proceedings that the personal injury as pleaded by the appellant was an issue, and accordingly, the Medical Assessor was bound to accept that the injury before him as presented in the Referral of 29 March 2023 was a personal injury, and not a disease injury.
(h) In his statement dated 7 February 2023, the appellant reported the following as to the injury of 2011, leading up to the injury of 23 February 2017:
“… 7. In or around 2011, during the course of my duties with CHEP, I was bending and twisting when I sustained an injury to my lower back. I experienced severe lower back pain and spasm, preventing me from standing to an upright posture. I received physiotherapy treatment and participated in a gym-based strengthening program. My symptoms improved with conservative management, allowing me to resume my pre- injury duties at pre-injury hours.
8. At the time of the subject workplace injury, I considered myself to be fit, healthy and highly capable at handling the physical demands of my employment. …
11. On 23 February 2017, whilst in the course of my duties, I sustained an injury to my lower back, with radiating leg pain.”
(i) While the treating records of Dr Khan did not predate 2017 to address the appellant’s claim of a “ongoing injury” from 2011, the initial consultation of 8 August 2017 noted the following “factory warehouse worker presents with a history of lower back pain. He initially injured himself six years ago – resolved.”
(j) In his initial consultation, Dr Donnellan reported the following as to the previous 2011 injury:
“In 2011 he was at work when he was lifting a crate onto a hoot and as he lifted and twisted the crate, he felt pain in his right lower lumbar spine. He then developed pain going into his right buttock, thigh and calf. It also radiated into the lateral aspect of his foot. He got good relief from the steroid injection at the time, and he eventually returned to normal duties after about a year.”
(k) At all times, this claim was treated as a personal injury which occurred on 23 February 2017, as a result of the specific duties the appellant was performing that day. At no stage did the appellant give indication that this was a claim which has occurred “from 2009 to 23 February 2017” as is now being claimed as part of the appeal. The respondent relies on the nature of the pleadings, the treating medical evidence and the appellant’s own evidence which confirmed that he recovered from the earlier injury of 2011.
(l) The appellant referred to the opinion provided by Dr Dan qualified by the respondent and asserted that the doctor conceded that the claim was a disease claim. An excerpt of one of the reports of Dr Dan was provided in the appellant’s submissions. The respondent asserted that this was incorrect. In his report dated 11 February 2021 Dr Dan noted at 3.1 that it was difficult to associate the 2011 and 2017 injury due to the time elapsed between the two. The doctor considered it reasonable to attribute the disc lesion to the injury in 2017.
(m) In this regard, in Metwally v University of Wollongong [1985] HCA 28, the High Court determined:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The appellant is bound by the ARD filed on 22 February 2022, as well as the treating material and the referral to the Medical Assessor which all indicated the appellant had a personal injury on 23 February 2017.
(n) In Townsend v ESN Management (no 2) Pty Ltd T/as Hannan Print Dubbo [2006] NSWWCCMA (Townsend), the Appeal Panel confirmed that there is a difference between the role of an arbitrator and that of Approved Medical Specialist (AMS. Should there be a dispute as to the date of injury, it must be determined by an arbitrator prior to referral to the AMS.
(o) The Medical Assessor conducted an assessment in accordance with that referral which includes date of injury. Section 325 of the 1998 Act provides that the AMS must give a certificate as to the matters referred.
(p) Deputy President Fleming in Jopa Pty Ltd t/as Tricia’s Clip-n-Sip v Edenden [2004] NSW WCC PD 50 stated:
“…it is reasonable to expect strict compliance with the requirements of s 325 (1) and (2). Similarly, in Diane Iogha v Inghams Enterprises Pty Ltd [2004] NSWWCCMA 067, the Appeal Panel concluded the role of an AMS was to ‘make an assessment of impairments and losses of use suffered by the appellant on the assumption that those injuries exist. It is for an Arbitrator to determine the question of causation.’”
(q) The alleged failure to note a “disease injury” by the Medical Assessor in his assessment did not result in a demonstratable error. If the appellant was dissatisfied with the referral, objection should have been made at a time where the issue could have been determined by the Commission, where the issue as to the nature of the injury could have been considered by a Member of the Commission in the usual manner and pursuant to the rules of the Commission.
(r) The role of the Medical Assessor is to determine the medical dispute, and not determine legal issues. The Medical Assessor complied with his obligation to assess the appellant’s impairment, in accordance with the date of injury and the nature of the pleadings provided to him, it was not within his jurisdiction to consider extraneous matters to the referral. This was not the role of a Medical Assessor.
(s) Additionally, should this appeal be allowed, the respondent would be severely prejudiced and suffer procedural unfairness on the basis that the appellant essentially sought to plead a new claim on behalf of the appellant. In this regard, the respondent relies on s 289A of the 1998 Act, on the basis that a claim for an injury pursuant to the disease provisions has not been notified previously, nor was it raised in writing between the parties.
(t) In Cole v Wenaline Pty Ltd [2010] NSWSC 78, the court determined that the extent to which a worker’s post work injury impairment is due to the earlier injury or pre-existing condition, or abnormality must be determined in consideration of a s 323 deduction, and this process must be completed by reference to the evidence, and not by reference to assumption or hypothesis.
(u) In Ryder v Sundance Bakehouse [2015] NSWSC526 (Sundance), the court considered the following to be the requirements in considering a deduction under s 323(1) of the 1998 Act:
(i)the level of the worker’s permanent impairment must first be determined at the time of the assessment;
(ii)a prior injury or pre-existing condition must be identified;
(iii)it must be determined whether a proportion of the worker’s post-injury impairment is due to the prior injury or pre-existing condition, and
(iv)the extent to which the worker’s post-injury impairment is due to the prior injury or pre-existing condition must be determined.
(v) In Drosd v Workers Compensation Nominal Insurer [2016] NSWSC 1053 at [86], Garling J noted that if a deduction required to be made under s 323(1) would be too difficult or costly to determine, the extent of the deduction to be made, because of the absence of medical evidence or some other reason, then in that circumstances, the deduction to be made under s 323(1) can be assumed, in accordance with s 323(2) of the 1998 Act to be 10%.
(w) In the present circumstances, the Medical Assessor has made an appropriate assessment of the appellant and identified that there was a significant pre-existing injury which was separate to the injury subject to the present dispute, which is also affecting the appellant’s current post-injury impairment.
(x) Pursuant to s 327 of the 1998 Act, the appellant is required to establish that the Medical Assessment was made on the basis of incorrect criteria and/or that the MAC contains a demonstratable error. The appellant has failed to identify any basis for incorrect criteria or demonstrable error and therefore the appeal must be refused.
(y) In the event that the Appeal is permitted, the MAC should be confirmed. The Medical Assessor discharged the function of a Medical Assessor and has undertaken an examination in accordance with 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.
The role of the Medical Appeal Panel was considered by the Court of Appeal in the case of Siddik v WorkCover Authority of NSW [2008] NSWCA 116 (Siddik). The Court held that while prima facie the Appeal Panel is confined to the grounds the Registrar has let through the gateway, it can consider other grounds capable of coming within one or other of the s 327(3) heads, if it gives the parties an opportunity to be heard. 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.
Section 327(2) was amended with the effect that while the appeal was to be by way of review, all appeals as at 1 February 2011 were limited to the ground(s) upon which the appeal was made. In New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] SC 1792 Davies J considered that the form of the words used in s 328(2) of the 1998 Act being, “the grounds of appeal on which the appeal is made” was intended to mean that the appeal is confined to those particular demonstrable errors identified by a party in its submissions.
The Appeal Panel reviewed the history recorded by the Medical Assessor, his findings on examination, and the reasons for his conclusions as well as the evidence referred to above.
Deduction for pre-existing condition or injury
The appeal was confined to the deduction of one-tenth pursuant to s 323(2) of the 1998 Act.
Section 323 of the 1998 Act provides:
“(1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality.
(2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.
Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%).
(3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the medical assessor in connection with the medical assessment of the matter.
(4) The WorkCover Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
Sub-section (1) of s 323 requires the medical assessor make a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the Workers Compensation Act 1987 (1987 Act) or that is due to any pre-existing condition or abnormality.
Inconsistencies in the history of the Medical Assessor and the appellant and the reports of Dr Dan and Dr Assem.
The appellant submitted that there were inconsistencies between the history taken by the Medical Assessor and the history given by the appellant and the history noted in the reports of Dr Dan and Dr Assem.
In the ARD the injury was pleaded as follows:
“On 23 February 2017, during the course of his ordinary employment duties, the Applicant was required to take stacks off a conveyor belt, and hook them onto a line every 2-3 seconds, which comprised of repetitive pushing, bending, twisting and squatting movements. Whilst doing so, the Applicant’s back gave out and he was unable to straighten it.”
The appellant, in his statement dated 7 February 2023, wrote:
“11. On 23 February 2017, whilst in the course of my duties, I sustained an injury to my lower back, with radiating leg pain...
12. On the date of the subject injury, I was carrying out my usual working duties, when I experienced lower back pain and tightness while operating a forklift”.
Dr Dan, in his report of 1 February 2021, merely referred to an injury on 23 February 2017 and did not describe the mechanism of injury on 23 February 2017.
Dr Assem, in his report dated 13 April 2022, noted “On 23 February 2017, there was an exacerbation of his symptoms while driving a forklift”.
Dr Donnellan, in his report dated 13 July 2017, merely referred to a recurrence of a pain syndrome in February 2017.
The Medical Assessor noted the following history:
“Mr Ung related that on 23 July (sic) 2017, he had been hitching plastic crates, which were coming down a conveyor, up onto a chain hook system so that they could then go through a washing procedure. He did this, he experienced severe and sudden lower back pain.”
The history provided by the Medical Assessor in relation to the injury on 23 February 2017 was consistent with the description of injury provided in the ARD, that was, taking stacks off a conveyor belt, and hooking them onto a line every two to three seconds. Dr Dan and Dr Donnellan do not actually describe the mechanism of the injury on 23 February 2017. Dr Assem reported that there had been an exacerbation of symptoms on 23 February 2017 while driving a forklift as did the appellant in his statement dated 7 February 2023.
The concept of a demonstrable error as utilised under s 327(3)(d) of the 1998 Act was discussed at length by Gleeson JA in Vannini v WorldWide Demolitions Pty Ltd [2018] NSWCA 324. In dealing with the authorities, his Honour observed that for an error to be demonstrable it needed to be material, apparent on the face of the certificate and an error for which there is no information or material to support the finding made, rather than a difference of opinion.
The Appeal Panel noted that despite his statement dated 7 February 2023 and the description of the injury by Dr Assem, an injury was pleaded in the ARD which described the mechanism of injury as taking stacks off a conveyor belt and hooking them onto a line every two to three seconds. The appellant failed to identify how any alleged mistake in the history taken by the Medical Assessor had an impact on the assessment made and the deduction made pursuant to s 323 of the 1998 Act.
The Appeal Panel was not persuaded that any alleged inconsistencies in the history were material and that there was a demonstrable error or application of incorrect criteria in terms of the history taken by the Medical Assessor.
Nature of the claim
The appellant submitted that the date of injury pleaded in the ARD of 23 February 2017 was a deemed date, being the date identified as when the disc lesion occurred or in the alternative, the injury was a disease which has progressed over time, with the initiating incident being the one in 2011.
The Appeal Panel reviewed the history of this claim.
In the letter of claim pursuant to s 66 of the 1987 Act, the appellant’s referred to the date of the injury as being 23 February 2017 and advised that the claim was based on the report of Dr Assem dated 13 April 2022.
In the s 78 Notice dated 14 December 2022, Ms Weston from the self-insurer, Brambles Limited, noted a claim had been received for s 66 compensation “in respect to your worker’s compensation claim for the injury to your lumbar spine occurring on 23 February 2017.” Under “3. Statement of your and our issues relevant to the matters in dispute” Ms Weston noted: “Under cover letter dated 20 July 2022, your solicitors duly made a claim for 15% Whole Person Impairment based on a report of Dr Assem dated 13 April 2022”.
Dr Assem, in his report dated 13 April 2022, noted under “Past History”:
“In 2011 during the course of his duties with CHEP Australia, Mr Ung was bending and twisting when he sustained an injury to his lower back. He experienced severe lower back pain and spasm preventing him from standing to an upright posture. He received physiotherapy treatment and participated in a gym-based strengthening exercise programme. His symptoms improved with conservative management allowing him to resume his pre-injury duties at his pre-injury hours. There were no other relevant medical or surgical conditions reported”.
Under “Injuries and Disabilities”, Dr Assem wrote:
“Mr Ung is a 30-year-old right hand dominant man who sustained an initial work
related injury to his lumbar spine in 2011, causing radicular symptoms in his right leg.
I understand that he has experienced occasional pain across his lower back since that time.
On 23 February 2017, there was an exacerbation of his symptoms while driving a forklift. Radiological imaging identified a right L4/5 disc prolapse causing right L5 radiculopathy. He proceeded to have surgery on 26 February 2018 with a good result.
Over the past 12 months, he has experienced recurrence of symptoms in the left side of his back, radiating down the left leg. On clinical examination, he has positive root tension signs and atrophy of his right calf.
He has difficulty bending, stooping, lifting heavy items, sitting, standing or walking for long periods”.
After assessing total WPI of the lumbar spine as 15% Dr Assem wrote: “I have not applied any deduction as his back complaints are the result of his work activities with CHEP Australia from 2009 to the present time.”
In the ARD, under “Injury Details” the type of injury was noted as “Personal” with a date of injury of “23 February 2017”. The box next to the words “Deemed date” was left blank. Under “Injury description/Cause of Injury and Death” the following was inserted:
“At the time of injury, the Applicant was employed by the Respondent as a labourer.
On 23 February 2017, during the course of his ordinary employment duties, the Applicant was required to take stacks off a conveyor belt, and hook them onto a line every 2-3 seconds, which comprised of repetitive pushing, bending, twisting and squatting movements. Whilst doing so, the Applicant’s back gave out and he was unable to straighten it.
As a result, the Applicant sustained a personal injury to his lumbar spine.”
The ARD contained a further section headed “Permanent Impairment/Pain and Suffering”. In this section the following details were included:
“Date of Injury 23/02/2107
Systems Claimed “Lumbar spine”
The “Referral for Assessment of Permanent Impairment to Medical Assessor” (the referral) was made on 29 March 2023 and noted the following:
“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury (s319(c))
whether any proportion of permanent impairment is due to any previous injury or pre existing condition or abnormality, and the extent of that proportion (s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully ascertainable (s319(g))
Date of Injury: 23 February 2017
Body part/s referred: Lumbar spine
Method of assessment: Whole person impairment.”
In his statement dated 7 February 2023, the appellant wrote:
“7. In or around 2011, during the course of my duties with CHEP, I was bending and twisting when I sustained an injury to my lower back. I experienced severe lower back pain and spasm, preventing me from standing to an upright posture. I received physiotherapy treatment and participated in a gym-based strengthening program. My symptoms improved with conservative management, allowing me to resume my pre-injury duties at pre-injury hours.
8. At the time of the subject workplace injury, I considered myself to be fit, healthy and highly capable at handling the physical demands of my employment. Particularly, I do not recall experiencing any pain or restrictions in my back prior to commencing with the subject employer. I was able to wholly engage with daily activities without compromise and seldom took time off work.
…
11. On 23 February 2017, whilst in the course of my duties, I sustained an injury to my lower back, with radiating leg pain. The development of my injuries, subsequent symptoms and resulting treatment is detailed below.
12. On the date of the subject injury, I was carrying out my usual working duties, when I experienced lower back pain and tightness while operating a forklift. The pain was radiating down my right leg. I informed my Supervisor, Una I, straight away, of the excruciating lower back and leg pain. An incident report was filled out. I was advised to stop working and to consult with a doctor. I was also attended to by a paramedic that night. Following the onset of pain, I was applying heat packs to my lower back at home, resting and taking pain medication.”
Dr Dan in a report dated 11 February 2021 noted under “History”:
“He said the symptoms started in 2010 or 2011 when he was lifting a crate and twisting to the left and was stuck in a bent over position. The paramedics and doctor attended and he was referred for physiotherapy.
He had two cortisone injections with the first helping the back and lower limb pain but the second did nothing. He had hydrotherapy, gym and physiotherapy and the symptoms settled. They have, however, come on and off since. Dr Donnellan, Neurosurgeon, operated he thinks on 23.2.17 following which he was good with the nerve pain but the low back pain was tight with local pain in the lumbar region and both gluteal regions.
Currently he had a gradual recurrence of symptoms returning with nerve pain in the four limbs which he said occurred when work got very busy with lots of running around, lifting and pushing. He is on full-time light duties and estimated that he had lost 2 months of work in the post-surgical period”.
The appellant referred to a number of paragraphs in Dr Dan’s report dated 11 February 2021. However, the paragraphs set out in the appellant’s submissions differed to the paragraphs contained in the report of Dr Dan dated 11 February 2021 that was provided to the Appeal Panel and annexed to both the ARD and Reply.
The appellant submitted that Dr Dan wrote the following:
“2.2 Would the Claimant have suffered the presenting symptoms as a normal progression of any pre-existing condition? Please explain your answer.
I do not believe that the pre-existing condition has much bearing on the current presentation. That unless, as per stated in 2.2, is related to an undiagnosed mental health condition.
2.3 Did the alleged injury aggravate any pre-existing condition or did the alleged incident cause the current back injury? Please explain your answer.
I do not believe so. I think this is a "de novo" presentation albeit there may be background complicating issues (some of them unknown) as per above.
3. Causation
3.1 Would you consider that the back injury has arisen out of, or occurred in, the course of the Claimant’s employment?
It is difficult to say. Possibly not. I cannot comment on the original presentation which resulted in surgery because I did not look after the worker during that time.
3.2 Was this a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?
I do not believe so. However, I would value the opinion of a neurologist rather than a neurosurgeon with this case and I have voiced this previously. There does not appear to be any underlying, for example, rheumatological condition and indeed the symptoms voiced do not suggest this as a possible aetiology.”
However, the report of Dr Dan dated 11 February 2021 provided to the Appeal Panel reads as follows:
“2. SIGNIFICANCE OF PRE-EXISTING CONDITION:
2.1 In my opinion, what is the significance of any pre-existing condition in relation to the back injury?
I do not think that any pre-existing condition is relevant.
3.1 Would I consider that the back injury has arisen out of, or occurred in, the course of Mr Ung's employment?
The disc protrusion may have arisen out of the work incident but the long history between 2010/2011 and the surgical decompression on 26.2.18 makes it difficult to associate the two. If the date of injury, as noted on page 2 of your letter of referral, is correct and dating the injury at 23.2.17 it would be reasonable to attribute the disc lesion to that incident. On that basis I would associate the disc lesion with his employment.
3.2 Was this a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?
He reported symptoms since 2010/2011 and it is therefore likely that whatever occurred in February 2017 caused an exacerbation which was on the basis of pre-existing changes.
3.3 Regardless of whether the back injury satisfies the criteria bi (3.2) above, what is my opinion as to whether the alleged injury materially contributed to the back injury and does it continue to materially contribute?
A lifting/twisting incident which Mr Ung dated to 2010/2011 would be unlikely to contribute. If the actual date was 23.2.17 it would, on balance, materially contribute to the disc lesion which required surgery”.
The Appeal Panel relied on the paragraphs in Dr Dan’s report as set out in the material provided to the Appeal Panel and as set out above in paragraph 46.
Dr Azhar Khan, general practitioner, in a clinical entry dated 8 August 2017 wrote:
“Factory warehouse worker presents with a history of lower back pain. He initially injured himself six years ago - resolved.
Recurrent lower back pain in March 2017”
Dr Donnellan in a report dated 13 July 2017 noted under “History of Present Complaint”:
“In 2011 he was at work when he was lifting a crate onto a hook and as he lifted and twisted the crate he felt pain in his right lower lumbar spine. He then developed pain going down into his right buttock, thigh and calf. It also radiated into the lateral aspect of his foot. He got good relief from the steroid injection at the time and he eventually returned to normal duties after about a year.
History of Present Complaint
In February 2017 he had a recurrence of his pain syndrome. Again he still has pain in a similar distribution with pain in the right lower lumbar spine, buttock, posterior thigh, lateral calf and lateral aspect of the dorsum of his foot”.
In a report dated 17 March 2017, Dr Sajani Vidanalage, nominated treating doctor, wrote:
“On review of the 1.3.2017, Mr. Ung advised that he experiences low back pain radiating to right leg since 23.02.2017. He has long standing history of low back pain since 2011”.
In the MAC, under “Brief History of the incident/onset of symptoms and of subsequent related events, including treatment”, the Medical Assessor noted:
“Mr Ung related that on 23 July 2017, he had been hitching plastic crates, which were coming down a conveyor, up onto a chain hook system so that they could then go through a washing procedure. He did this, he experienced severe and sudden lower back pain.”
In the MAC under “Details of any previous or subsequent accidents, injuries or conditions”, the Medical Assessor wrote:
“Attention is drawn to a similar episode which is reported to have occurred in 2011. The history of this is not very clear, although seems to be associated with lifting crates up and onto hooks on a chain, very similar to what he described was the origin of this most recent episode. This event occurred in the same workplace. I was unable to find any details about this in the file and Mr Ung was unable to give me any further details. My understanding is that he was off work for about a year following this event and then was able to get back to his normal duties.”
Under “Summary of injuries and diagnoses” the Medical Assessor noted: “There appears to have been previous dysfunction of his lower back in 2011 with similar features down the right leg, which had him off work for about a year.”
In providing a one-tenth deduction, the Medical Assessor wrote:
“Attention is drawn to the previous situation of 2011 when he had lower back pain radiating down his right leg. This kept him off work for about a year. It therefore looks as though the event in 2017 was probably a further aggravation of this previous underlying event and this became sufficiently extensive to warrant the more recent surgical procedure. This is therefore a 1/10th deduction.”
The claim was made with respect to a specific injury which occurred in the course of employment on a specified date, that was 23 February 2017. The form for an application to resolve a dispute required identification of the date of the injury, a description of the injury, and a description of how the injury occurred.
The Appeal Panel was not persuaded that the claim made by the appellant was a “nature and conditions claim” or that the date of injury of 23 February 2017 was a deemed date representing the “nature and conditions of work since 2009 to 23 February 2017”. It was clear from the ARD and the referral that the claim for permanent impairment was made in respect of a personal injury on 23 February 2017 and that this claim was not pleaded as an injury with a deemed date of injury.
The Appeal Panel accepted that the parties were aware that there had been a prior injury to the lumbar spine while employed by the respondent in 2011. However, the appellant did not include the injury on that date in the ARD.
However, the Appeal Panel accepted that the appellant’s claim was based on the report of Dr Assem dated 13 April 2022 and Dr Assem in making an assessment of 15% WPI wrote: “I have not applied any deduction as his back complaints are the result of his work activities with CHEP Australia from 2009 to the present time.”
The respondent in the s 78 Notice dated 14 December 2022, noted: “Under cover letter dated 20 July 2022, your solicitors duly made a claim for 15% Whole Person Impairment based on a report of Dr Assem dated 13 April 2022”.
It was arguable therefore that the appellant had made a claim in respect of work activities with the respondent from 2009 to the present time including the injuries in 2011 and 2017 but the ARD clearly restricted the claim to a frank injury which occurred on 23 February 2017. The referral was based on the particulars provided by the appellant in the ARD.
The appellant referred to the opinion provided by Dr Dan and asserted that questions put to Dr Dan demonstrated that the respondent was aware that the claim was a “nature and conditions” or “disease” claim. However, the excerpts of Dr Dan’s report dated 11 February 2021 relied upon by the appellant were, as noted above, wrong. What Dr Dan did note in that report at 3.1 was that it was difficult to associate the 2011 and 2017 injury due to the time elapsed between the two. Dr Dan considered it reasonable to attribute the disc lesion to the injury in 2017. Dr Dan further expressed the opinion that it was likely that whatever occurred in February 2017 caused an exacerbation which was on the basis of pre-existing changes but went on to state that a lifting/twisting incident in 2011 would be unlikely to contribute to the back injury.
Any dispute concerning the nature of the claim such as whether the claim was a claim in respect of a personal injury on 23 February 2017 or whether it was a “nature and conditions or disease claim” required the determination of that liability issue by a Member before it could be referred to a Medical Assessor: State of New South Wales v Bishop [2014] NSWCA 354 That decision is consistent with subsequent authority such as Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88. White J at [88] then endorsed the proposition that the jurisdiction of the Commission, as opposed to a Medical Assessor, is to determine “the nature of the injury sustained”.
The appellant argued that the decision in Skates represented a departure from the view that the Medical Assessor was bound by the referral with both Leeming and McCallum JJA stating that what is referred for assessment by a Medical Assessor was the “medical dispute” not body parts. The observations of the Court of Appeal in Skates, confirmed that the exchange of correspondence and medical evidence relevant to the claim, identified the scope of the medical dispute.
The appellant referred to the following paragraphs in Skates where at [47]-[48] Leeming JJA stated:
“47. Sections 321 and 321A concern referrals of a dispute for assessment. The language of the heading of each section commences ‘Referral of medical dispute’ and each provision confirms that it is the medical dispute which is referred for assessment. Section 293 authorises the referral of a medical dispute for medical assessment and the deferral of determination of the dispute. All these provisions proceed on the basis that the outcome of the assessment is the resolution of the medical dispute. So too does the conclusive presumption of correctness accorded by s 326 to assessments which are certified in a medical assessment certificate.
48. The paperwork associated with the administration of the legislation seems to have led to a tendency to give to the document comprising the ‘referral’ to an Approved Medical Specialist a greater status than it warrants. The document is important. However, the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission.”
At [81] McCallum JA stated that:
“81. … But more importantly, the focus on body parts is apt to distract attention from the precise matter to be assessed and certified by the approved medical specialist. Parts 4 and 5.6 of the application to resolve a dispute had to be read together and in the context of the statutory regime explained above. The legislation contemplates the referral of a ‘medical dispute’, being one of the matters specified in s 319 (here, the degree of permanent impairment of the worker as a result of his injuries). Part 4 of the application specified the relevant injuries; part 5.6 specified the body systems claimed to have impairment as a result of those injuries.”
However, in Skates, the matter was referred back for re-assessment because the parties were aware that the medical dispute included the left wrist and the employer/insurer in Skates conceded that the left wrist, which was omitted in the referral, should have been assessed. In this case, the employer/respondent has not conceded that the injury to be assessed was an injury caused by the nature and conditions the appellant’s work activities since 2009 including the incident in 2011. Indeed, the respondent submitted that what the appellant essentially sought was to plead a new claim on behalf of the appellant which had not been previously notified or raised in writing between the parties.
The appellant did not seek to object to the terms of the referral before the assessment when any issue as to the nature of the injury could have been determined by a member of the Commission. There was no explanation by the appellant as to why the appellant did not object to the terms of the referral.
The Appeal Panel considered that the medical dispute identified between the parties was a dispute concerning the degree of impairment to the lumbar spine as a result of the personal injury on 23 February 2017. While the respondent was aware that the appellant had sustained an earlier injury to the lumbar spine in its employment in 2011, this claim was made on the basis of the injury on 23 February 2017. Although Dr Assem did not apply any deduction under s 323 as he considered that the appellant’s back complaints were the result of “his work activities with CHEP Australia from 2009 to the present time”, the appellant made his claim on the basis of a personal injury on 23 February 2017 and not on the basis that there had been an injury caused by the nature and conditions the appellant’s work activities since 2009 including the incident in 2011.
Clearly the appellant was bound by the conduct of his case. The appellant was bound by the ARD filed on 22 February 2023, as well as the treating material and the referral to the Medical Assessor which all indicated that the appellant had a personal injury on 23 February 2017.
The Appeal Panel considered that the Medical Assessor assessed the appellant’s impairment, in accordance with the date of injury and the nature of the pleadings provided to him. The task of the Medical Assessor was to certify his assessment with respect to the “matter” referred.
The appellant submitted that the Medical Assessor in considering whether a deduction ought to be applied, failed to consider the propositions of causation as set out in State Government Insurance Commission v Oakley (1990) 10 MVR 570.
Malcolm CJ in Government Insurance Commissions v Oakley [1990] WASC 12 (17 January 1990) (Oakley) identified three categories where the issue of causation involved consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury and the assessment of damages consequential upon an earlier injury. His Honour adopted the following statement of principle:
“In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:
(1) Where the further injury results from a subsequent accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of the aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.”
In subsequent cases, courts including the Court of Appeal (Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321(Johnson No 2) adopted as correct this statement of legal principles and referred to different factual situations of this type as falling into either the first, second or third “Oakley categories”. The Appeal Panel has also adopted this mode of analysis in reaching its conclusions. In Johnson No 2 the appellant formulated two questions for the court and the respondent worker did not dissent from that formulation. The questions were as follows:
(1) Whether, in the case of a subsequent injury, common law principles relating to causation apply to an assessment made under Pt 7 of Ch 7 of the Management Act in relation to the earlier injury.
(2) Whether in the circumstances of this case, the common law principles required the Appeal Panel to determine that the entirety of the whole person impairment assessed by it, in reliance on the assessment by the AMS, was the result of the First Injury, without allowing for apportionment on account of impairment resulting from the Second Injury.
In Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396; [1999] Aust Torts Reports 81-531 (Aboushadi), Mason P, with whom Meagher JA and Barr AJ A agreed, said:
“23 … the question at issue is the extent of liability of the first tortfeasor in a situation where the continuing adverse impact of the first tort is discernible. It is not the law that the commission of a second tort, affecting an already vulnerable plaintiff, by itself puts an end to the liability of the defendant responsible for the first tort …”
In Aboushadi, which was a common law claim, the plaintiff had suffered increased psychiatric problems as a result of two further incidents after the one for which he was claiming damages in the present action. It was held that it was irrelevant that the third incident was tortious, giving him a claim against another tortfeasor, since the original incident caused the later tort to have added gravity.
In Nicol v Macquarie University [2018] NSWSC 530 (Nicol) Harrison AsJ found that the principles applicable in that case were those where a second and subsequent injury caused greater damage because of the existence of an earlier injury. At [144] and [145], Harrison AsJ said:
“144. I accept that the decision on causation of Mr Nicol’s depression is essentially a medical opinion, but the Appeal Panel’s decision must nevertheless be made in accordance with the statutory requirements, including 9A (1) of the Workers Compensation Act. The Appeal Panel did not specifically set out the statutory requirements of s9A (1). The language used by the Appeal Panel also indicated that the new injury caused Mr Nicol’s symptoms to recur, yet made no reference to any novus actus that broke the chain of causation from Mr Nicol’s earlier injury sustained at Macquarie University.
145. The characterisation of the new injuries causing symptoms to recur suggests that the new injury and prior injury are linked. ... It does not follow that the aggravation alone results in a new injury unless the causal chain has been broken.”
The common law principles of causation in tort are to be applied in workers compensation cases. However, the statement of principle set out in Oakley applies to the first tortfeasor or in workers compensation disputes to claims in respect of an injury where there was a subsequent injury. In worker compensation cases the common law principles relating to causation apply to an assessment made under Pt 7 of Ch 7 of the 1998 Act in relation to the earlier injury. The principle set out in Oakley applies to an assessment of the earlier injury and not to the situation in this case where the claim made was in respect of a later or subsequent incident in 2017 and where the appellant seeks to include the effect or impact of the prior injury in 2011.
The Appeal Panel therefore rejects the appellant’s submissions that:
(i) there ought not to have been any deduction under s 323 because the previous injury in 2011 was causally related on the later injury on 23 February 2017 either as an initiating incident in respect of a “disease process/nature and conditions”, or the initiating incident that the later injury on 23 February 2017 acted upon to make worse, resulting in the need for surgery;
(ii) the Medical Assessor failed to consider whether the further recurrence causing additional damage was causally related to the original injury in 2011, and
(iii) the Medical Assessor failed to consider all the evidence before him which signified that the date of injury of 23 February 2017 was a deemed date representing the “nature and conditions of work” since 2009 to 23 February 2017, or a deemed date of injury representing a disease which included the earlier date of injury in 2011.
The Appeal Panel found no error in the MAC and found that the assessment was not made on the basis of incorrect criteria.
For these reasons, the Appeal Panel has determined that the MAC issued on 5 June 2023 should be confirmed.
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