Vu v U-Rect-It Pty Ltd
[2024] NSWPICMP 287
•14 May 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Vu v U-Rect-It Pty Ltd [2024] NSWPICMP 287 |
| APPELLANT: | Kiet Anh Vu |
| RESPONDENT: | U-Rect-It Pty Limited |
| APPEAL PANEL | |
| MEMBER: | Parnel McAdam |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Christopher Oates |
| DATE OF DECISION: | 14 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; causation; whether Medical Assessor (MA) had made a finding as to injury by agreeing with respondent’s evidence; MA did not err; section 323; whether MA erred in making a deduction of one half; appellant suffered from pre-existing condition being congenital short pedicles; Matthew Hall Pty Ltd v Smart and Fire & Rescue NSW v Clinen distinguished; Held – MA erred; Medical Assessment Certificate revoked, new certificate issued with deduction of one tenth pursuant to section 323(2). |
BACKGROUND TO THE APPLICATION TO APPEAL
On 12 March 2024 Mr Vu, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Greg McGroder, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 22 February 2024.
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
Mr Vu was employed by the respondent as a machine operator – dye setter. His work involved the manufacture of metal shop fittings and shelves. The job was physically demanding, involving bending, heavy lifting and twisting. Mr Vu was required to lift heavy dyes which ranged from 10 to 20kgs up to those that were so heavy they could not be lifted manually, but required a forklift. The work also involved lifting of heavy pieces of metal. The work was undoubtedly of a heavy nature and by any understanding physically demanding.
In around 2013, he noticed numbness in his hands, which led to investigations and surgery, performed on 8 November 2013, being a C3 to C7 laminectomy. Unfortunately for Mr Vu, he had ongoing symptoms in his upper extremities, which spread to his lower extremities and required further surgery.
Mr Vu made a claim for lump sum compensation which was referred to a Medical Assessor for assessment. The Medical Assessor made an assessment of 24% whole person impairment in the cervical spine. This assessment was reduced by one half pursuant to s 323 of the 1998 Act. It is that aspect of the assessment that the appellant takes issue with.
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 not necessary for the worker to undergo a further medical examination because there is sufficient material before the Appeal Panel to determine the appeal.
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. This includes:
(a) the Application to Resolve a Dispute;
(b) the Reply;
(c) the respondent’s Application to Admit Late Documents dated 22 November 2023, and
(d) Consent Orders issued by the Personal Injury Commission (Commission) dated 11 December 2023.
Relevant parts of the evidence, including the Medical Assessment Certificate, will be referred to in the Appeal Panel’s reasons below.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
The appellant’s grounds for appeal are not identified with great specificity, however, they are in summary:
(a) the Medical Assessor went outside of the terms of the referral in commenting on causation, acting in an ultra vires manner;
(b) there was no or insufficient evidence to determine that a pre-existing condition was contributing to impairment;
(c) the Medical Assessor did not provide sufficient reasons for his conclusion, and
(d) the deduction made by the Medical Assessor was too high, and should have been one tenth as in all the circumstances it was difficult to determine.
In reply, the respondent submits that:
(a) the Medical Assessor did not cavil with any finding of injury, and it was open to him to come to the conclusion he reached in relation to s 323 of the 1998 Act;
(b) adequate reasons have been provided for the Medical Assessor’s clinical conclusion, and
(c) there is no basis to assert that s 323(2) could apply to determine the extent of the deduction, as there is evidence to determine that the deduction should be greater than one tenth.
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 Queanbeyan Racing Club Ltd v Burton [2021] NSWCA 304 (Burton), the Court of Appeal confirmed that the Appeal Panel is not limited to the ground held by the President to have been made out pursuant to s 327(3), but cannot look for errors which are not part of the grounds of appeal (per Basten JA at [26]).
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel has an implied obligation 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 appellant raises four grounds for appeal which have been summarised above, although these really touch on only two issues. Consistent with Burton, the Appeal Panel’s consideration is limited to the issues raised in the appellant’s ground for appeal.
The terms of the referral
The appellant submits that the Medical Assessor did not limit his assessment to an assessment of impairment, but rather acted outside of his scope by commenting on causation of the appellant’s injury. The appellant refers to the following comment in the MAC:
“He considered that none of Mr Vu’s cervical spine condition was work related and subsequently did not feel that any of the impairment was related to the nature and conditions of Mr Vu’s work. I would be in agreement with Dr Breit on that but I note that injury has been found and impairment has been assessed accordingly.” (emphasis added)
It is the emphasised part of the Medical Assessor’s reasons that the appellant appears to take issue with – that is an agreement with the opinion of Dr Breit that the injury was not work related.
The Appeal Panel does not accept that on a fair reading of the MAC the Medical Assessor has acted outside of his jurisdiction. The above comment is unfortunate, but it has not caused the Medical Assessor to err. Ultimately, he has performed the statutory task required of him, and proceeded to assess permanent impairment on the basis that injury has occurred.
The above would be different if the Medical Assessor had proceeded to express an opinion that the worker did not suffer an injury and declined to assess impairment. The Commission has exclusive jurisdiction to determine certain aspects of a dispute, including whether a worker suffered an injury. Whilst there is no bright line as to questions of causation (Zanardo & Rodriguez Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449), a Medical Assessor is still bound to accept certain aspects of the medical assessment process, and importantly, must assess in accordance with the referral (Skates v Hills Industries Ltd [2021] NSWCA 142; Scone Race Club Ltd v Cottom [2024] NSWCA 34). The Medical Assessor has completed this task, in spite of the comments he made.
The appellant goes on to submit, much later in the chronology of submissions, that the conclusion he reached on causation led to an incorrect path of reasoning in relation to the s 323 issues the appellant is challenging. This is said to be in the alternative and is not particularly developed. Again, the Appeal Panel is satisfied that the Medical Assessor’s commentary on the report of Dr Breit is unfortunate and unhappy phrasing, but has not led the Medical Assessor to err as suggested. That does not mean that the Medical Assessor has not erred for other reasons as submitted. However, this ground of appeal is not made out.
The application of s 323 of the 1998 Act
The appellant’s submissions in relation to this point traverse a number of areas. In essence, the appellant is of the view that the deduction made by the Medical Assessor of one half was too high, and that a deduction of one tenth should apply, as the extent of the deduction would be difficult to determine.
There appears to be three bases to this argument:
(a) the Medical Assessor failed to consider that the injury is a deemed date of injury, caused during the period of employment with the respondent spanning 20 years;
(b) there was no evidence of an earlier injury, pre-existing condition or abnormality prior to his employment with the respondent, and
(c) the Medical Assessor provided insufficient reasons as to why he applied a s 323 deduction.
The respondent submits that the Medical Assessor provided sufficient reasons, and the clinical examination of the appellant together with the history and radiological investigations could lead to the conclusions reached and recorded in the MAC. The respondent refers to comprehensive radiological evidence of the presence of congenital conditions, identified as myelomalacia, at the time the injury was reported.
The respondent goes on to submit that there is no basis to assert that s 323(2) of the 1998 Act would apply, as it is not at odds with the available evidence that he has applied a deduction. The respondent relies on an MRI of the cervical spine dated 21 April 2013, taken one month after the deemed date of injury, and submits that it is evident from this report that the extent of pre-existing change in the cervical spine was advanced. The respondent also refers to the reports of Dr Hassan and Dr McGee-Collett.
Section 323 of the 1998 Act provides for a deduction to be made for a previous injury or pre-existing condition or abnormality. It 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 Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section.”
The Medical Assessor made a deduction pursuant to s 323(1) of the 1998 Act of one half. The appellant asserts that the deduction should be one tenth, pursuant to s 323(2).
The parties have referred to various decisions that discuss and interpret how s 323 is to be applied. There is no doubt that the section has received significant judicial scrutiny. Consideration of the section generally begins with the comments of Schmidt J in Cole v Wenaline Pty Limited [2010] NSWSC 78. Justice Campbell, in Ryder v Sundance Bakehouse [2015] NSWSC 526 (Ryder) explained the operation of the section:
“Section 323 as I have already said, requires there to be a deduction for any proportion of the impairment that is due to any pre-existing condition. This is an essential element of the section; indeed it is the pith of it. It is not enough to simply identify that there is a pre-existing condition and that there has been a subsequent impairment and therefore make a deduction under this section because of the existence of the pre-existing condition. Such reasoning fails to consider a necessary condition of the operation of the section; that a proportion of the permanent impairment is due to the pre-existing condition.” (at [54])
In Pereira v Siemens Ltd [2015] NSWSC 1133, Justice Garling sets out the steps to be undertaken in applying s 323.
There are other specific cases dealing with the variety of circumstances that arise in workers compensation claims. In Matthew Hall Pty Ltd v Smart [2000] NSWCA 284 (Smart), the Court of Appeal was considering the condition of keratoconus in circumstances where the worker had nothing more than a genetic predisposition to that condition. In Fire & Rescue NSW v Clinen [2013] NSWSC 629 (Clinen), the Court considered whether sun exposure during childhood constituted a pre-existing condition for the purpose of s 323.
It must also be recognised that in order to make a deduction pursuant to s 323, in circumstances where the injury is as a result of a deemed date of injury, one must identify a previous injury or condition that pre-existed the commencement of employment (or the duties that caused or aggravated the disease): Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416.
It is appropriate to consider the parts of the MAC that deal with the above questions. The Medical Assessor takes the following work history in relation to the appellant:
“He did various factory work in Australia until he started with Gibson Shop Fitters in 1996. This changed its name to U-Rect-It Pty Ltd and he ceased working there when he developed his widespread problems in 2013. He hasn’t worked since that time. He was employed as a machine operator. The company manufactured metal shelves. He had to load parts on and off the machine. He had to change the dies on a regular basis and this required some forceful use of the upper extremities and sometimes this was done in awkward positions. There was a good deal of bending, lifting and body twisting.”
It is clear from this history that the work of the appellant was heavy, forceful and repetitive across the entire period of his employment, from his commencement until the date of injury in 2013. On that basis, to proceed to make a deduction the Medical Assessor must be satisfied that the pre-existing condition pre-dated the commencement of Mr Vu’s employment from around 1996.
The Medical Assessor identified the following pre-existing condition: “Severe spinal and exit foraminal narrowing resulting in significant compressive myelopathy”. The Medical Assessor explained how the pre-existing injury contributed to impairment in the following way:
“The underlying spinal abnormality is congenital and long-standing. It has resulted in the severe spinal condition that Mr Vu is now experiencing and were it not for this underlying condition I expect that the condition that he now presents in would not have occurred were it not for the pre-existing condition.”
The Medical Assessor then went on to explain the extent of the deduction: “Were it not for the underlying congenital condition Mr Vu would not be presenting with the significant symptoms and signs that he presents with at the moment”. This was said to be on the basis that “the extent of the deduction is difficult or costly to determine the available evidence is that the deductible proportion is large and a deduction of one tenth is at odds with the available evidence”.
The Appeal Panel is of the view that the Medical Assessor has erroneously applied s 323 of the 1998 Act in concluding that the available evidence is that the deductible proportion is “large” and a deduction of one tenth is at odds with the available evidence. Here, the Medical Assessor has confused the existence of the pre-existing condition with evidence available to determine the extent to which that pre-existing condition has contributed to employment.
There is evidence for the former, including the radiological evidence and reports of Drs Hassan and McGee-Collett. There is no or insufficient evidence for the latter. The only evidence concerning the pre-existing condition suffered by the appellant begins to emerge following the cessation of his employment with the respondent. There is no evidence that pre-exists the start of the employment with the respondent prior to about 2013.
Accordingly, the Appeal Panel is satisfied that the MAC contains a demonstrable error. As a ground of appeal has been made out, the Appeal Panel will review the assessment limited to s 323 of the 1998 Act.
As discussed above, the appellant suffers from a pre-existing condition, being congenital short pedicles. This is an anatomical variation of a normal spine, producing a smaller than normal diameter of the central spinal canal and which, over time, has an increased likelihood of pressure being placed on the spinal cord (cervical myelopathy) if degenerative changes such as disc bulges develop at the same level as the already narrowed central canal through which the spinal cord passes. The MRI of 21 April 2013 demonstrates this, and the presence of myelomalacia (softening of the spinal cord due to pressure effect).
A person in the general public with congenital short pedicles has a higher than average chance of developing myelopathy than the unaffected population. That does not mean that anyone with that condition will ultimately find themself in the same position as the appellant. The appellant’s pre-existing condition should also be distinguished from the types of conditions outlined in Smart and Clinen, which are genetic markers or predispositions. Mr Vu had a pre-existing condition, not a likelihood of developing a condition.
The clinical presentation of Mr Vu is a complex mixture, with contributing factors based on his congenital condition, age-related degenerative changes, and the ongoing physically heavy nature of the work in which he was employed for may years with the respondent. Whilst that work did not cause the shortened pedicles, it has brought forward the development of complications associated with those pedicles, being myelopathic changes. Work is undoubtedly a contributing factor to the current degree of permanent impairment suffered by Mr Vu.
It must also be acknowledged that a portion of the impairment in this case is due to the surgeries undertaken by Mr Vu. Those surgeries were undertaken to treat the spinal cord compression, and not as a result of the shortened pedicles.
The challenging issue in this case is how much of a contributing factor to the current degree of permanent impairment are the congenital shortened pedicles. In exercising functions under s 323 of the 1998 Act, the Appeal Panel must take the steps as set out in the relevant case law above. That is:
(a) to firstly determine the level of impairment following the work injury (in this case, it is 24%, and the Appeal Panel is unable to review that aspect of the assessment as it has not been challenged per Burton);
(b) secondly, to determine whether a proportion of that impairment is due to some previous injury, or pre-existing condition or abnormality (here, the Appeal Panel is satisfied that it is, being the appellant’s pre-existing congenital short pedicles), and
(c) thirdly, to determine the extent or proportion of that contribution.
In relation to the third step, s 323 provides a number of alternatives. The Medical Assessor has determined that a deduction of one half was appropriate on the basis that a deduction of one tenth would be at odds with the available evidence. The Appeal Panel disagrees with that view and has determined that this approach was erroneous. The other alternatives are to make a deduction pursuant to s 323(1) (that is, in contrast with the path taken by the Medical Assessor, to make a deduction pursuant to the medical evidence available), or rely on the assumptive or default provision in s 323(2).
The latter is what the Appeal Panel proposes to do.
As discussed above, there is no medical evidence before the Appeal Panel that demonstrates the appellant’s condition prior to the commencement of his employment with the respondent. In those circumstances, it would be difficult to determine the extent of the deduction pursuant to s 323 of the 1998 Act. Accordingly, the operation of s 323(2) is enlivened, and a deduction of one tenth should apply.
The Appeal Panel also finds that this deduction is not “at odds with the available evidence”, as there is no evidence available that could determine the extent of impairment. To proceed on any other basis would be to enter into the realm of hypothesis.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 February 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7200/23 |
Applicant: | Kiet Anh Vu |
Respondent: | U-Rect-It Pty Limited |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Greg McGroder 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 | 4/3/13 (deemed) | Chapter 1 Chapter 4 | Chapter 15 | 24% | 1/10th | 22% |
| Total % WPI (the Combined Table values of all sub-totals) | 22% | |||||
0
11
0