Waite v Albury Galvanizing Pty Ltd
[2023] NSWPICMP 329
•19 July 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Waite v Albury Galvanizing Pty Ltd [2023] NSWPICMP 329 |
| APPELLANT: | Linda Waite |
| RESPONDENT: | Albury Galvanising Pty Ltd |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Chris Oates |
| MEDICAL ASSESSOR: | James Bodel |
| DATE OF DECISION: | 19 July 2023 |
| CATCHWORDS: | wORKERS cOMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether injury assessed was a nature and conditions injury; whether Medical Assessor erred by making a deduction under section 323(1) of 50% and not assuming under section 323(2) that the deduction to be made was 10%; Appeal Panel found the injury the subject of the assessment was an injury that occurred due to the appellant performing a specific task over the course of years; Appeal Panel found that the relevant date at which to determine whether the appellant had a pre-existing condition was the date at which she commenced that activity; Appeal Panel found that section 323(2) was engaged because whilst the evidence indicated appellant had a pre-existing condition at the relevant date it did not reveal the extent of the degeneration at that date and assuming the deduction to be made under section 323(1) was 10% was not at odds with the evidence; Held – Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 16 May 2023 Linda Waite, 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 19 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 ground(s) 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 employed by Albury Galvanising Pty Ltd, the respondent, as a fettler. She said in a statement she signed on 28 October 2022 that she had been employed with the respondent for around 13 or 14 years and that her employment was terminated in early February 2022. She also said that she was 61 years of age. That means that she would have commenced her employment with the respondent in 2008 or 2009, when she would have been 47 or 48 years of age.
The appellant described in her statement that she worked 40 hours a week and that her work required her to use an angle grinder regularly and repeatedly. She indicated that for approximately 12 months before January 2021 she had been experiencing pain and restriction of movement in her right hand and wrist and that this pain increased significantly in January 2021.
The appellant’s general practitioner (GP) referred the appellant to orthopaedic surgeon Dr Shailendra Dass. In the referring letter the GP advised Dr Dass that the appellant “has been working as a grinder for the last 13 years and had developed right wrist pain with deformity as per an x-ray and ultrasound, with trigger finger of the 3rd and 4th finger”. On 14 July 2021 Dr Dass carried out an arthroscopy on the appellant’s right wrist and released the triggering of the appellant’s middle and right fingers. On 6 October 2021 Dr Dass undertook a radial sagittal-band reconstruction of the dominant middle finger.
At the request of her solicitors, the appellant was examined by orthopaedic and trauma surgeon Dr Graham Doig on 11 May 2022. In a report dated 8 July 2022, Dr Doig advised the appellant’s solicitors that the appellant had informed him that she had been working as a fettler for 14 years and developed worsening dominant right wrist and hand pain while performing her normal duties. Dr Doig reported that the appellant’s condition deteriorated on 15 March 2021 and that the appellant believed her deteriorating symptoms were due to her repetitive use of a hand grinder for prolonged periods of time. Dr Doig advised that the appellant had suffered an injury to the triangular fibro-cartilage complex of the right wrist and an aggravation of a pre-existing degeneration at the scapho-trapezio-trapezoid joint and rupture of the sagittal-band to the dominant right finger. Dr Doig advised the appellant’s solicitors that he assessed that the appellant had “19% Permanent Impairment of the Whole Person” from her injury.
On 11 July 2022 the appellant’s solicitors wrote to the respondent’s insurer advising it that the appellant claimed compensation from it in the amount of $50,260 for 19% whole person impairment (WPI). It provided the insurer with a copy of Dr Doig’s report of 8 July 2022.
In response to that, the insurer organised for the appellant to be examined on 15 August 2022 by orthopaedic surgeon Dr Frank Machart. In a report of 2 September 2022 to the insurer Dr Machart noted that the history he obtained was that the appellant developed gradual onset of pain in her right hand and wrist over a period of 6 months prior to 15 March 2021. He said that this was due to the repetitive use of a 2 kilogram grinder and that there was no specific injury on the date of injury which he said was 15 March 2021.
Dr Machart advised the insurer that he diagnosed the appellant had “non-structural exacerbation of pre-existing substantial osteoarthritis in her wrist”. He said that the appellant had been treated for triangular fibro-cartilage degenerative changes which he said were part of her osteoarthritis and not caused by the injury. He said that the appellant had flexor tenosynovitis reasonably related to the work that she was conducting. He said that the appellant had extensive stiffness in the wrist and finger. He said that “while nature and conditions of employment may have caused some pain, it would be difficult to substantiate that this contributed to all aspects that were compiled on x-rays and MRI”. He advised the insurer that he assessed the appellant had 5% WPI as a result of her injury.
On 14 October 2022 the insurer wrote to the appellant, care of her solicitors, notifying her under s 78 of the 1998 Act that it disputed she was entitled to compensation for permanent impairment for her injury. It explained its reason for its decision, which was essentially that it relied upon the report of Dr Machart who had assessed her permanent impairment to be 5% WPI (although the insurer acknowledged that Dr Machart may have miscalculated his assessment and if correctly calculated her impairment would be 8% WPI). It advised the appellant that her permanent impairment from her injury had to exceed 10% WPI for her to be entitled to compensation under s 66 of the Workers Compensation Act 1987 (the 1987 Act) for permanent impairment.
A medical dispute consequently arose between the parties. On 31 November 2022 the appellant initiated proceedings in the Personal Injury Commission (Commission) seeking determination of her claim for compensation. She described her injury in her application in this way: “the worker sustained injury to her right hand, hand and fingers as a result of her employment working as a fettler and repetitive use of an angle grinder”.
A delegate of the President of the Commission referred the matter to the Medical Assessor. As indicated earlier, the Medical Assessor issued the MAC on 19 April 2023 in response to that referral.
The Medical Assessor provided the following summary of the appellant’s injury at Part 7 of the MAC:
“Ms Waite gives a history of dysfunction of her right hand and wrist, which came to a head in mid-March 2021. She had been working in a physically very arduous (and most unusual) occupation as a fettler in a metalworks. This had necessitated the use of an angle grinder held with both hands. She had been doing this job for over 13 years. Gradually she had developed aches and pains, particularly in the right hand and wrist.
She had also developed triggering of the right index and middle fingers. The radiological picture demonstrates extensive degenerative changes, particularly at the thumb carpometacarpal joint and to a lesser extent, the metacarpo-phalangeal joints of most of the digits. Other degenerative changes have also been demonstrated throughout the right hand and wrist complex.
Her clinical management came under the care of an experienced Orthopaedic Surgeon. He carried out an arthroscopic procedure on the right wrist and also released the triggering of the middle and ring fingers. This did give her some improvement, although the right hand and wrist were still grossly dysfunctional. About three months later, there appears to have been a rupture of a dorsal tendon of the middle finger, which necessitated further surgical repair.
Ms Waite declined further surgical intervention and since then, her clinical management has been completely conservative. She continues to have a grossly dysfunctional right hand.”
The Medical Assessor certified that he assessed the appellant’s permanent impairment to be 14% WPI. Neither party challenges that in the appeal. The appellant’s appeal relates to the deduction the Medical Assessor made under s 323(1) of the 1998 Act for the proportion of her permanent impairment that he considered was due to the pre-existing condition of degenerative changes in her right hand and wrist.
The Medical Assessor said at Part 8 of the MAC that:
“It is likely that a significant component of this would be associated with many years of occupation in this heavy duty work. Other components would be naturally occurring degenerative changes”.
The Medical Assessor noted that a plain X-ray of the appellant’s right hand done on 16 March 2021 revealed extensive degenerative changes in the thumb and metacarpo-phalangeal joint. He observed that an MRI scan of her right wrist and hand done on 15 May 2021 revealed tears at the triangular fibro-cartilage, and associated ganglion cyst and extensive degenerative changes especially in the thumb carpo-metacarpal joint. He noted that an MRI scan of the right wrist and hand done on 1 September 2021 revealed extensive degenerative changes in the middle finger metacarpo-phalangeal joint.
The Medical Assessor certified that a proportion of the appellant’s permanent impairment was due to a pre-existing condition which he described as “significant pre-existing degenerative changes”. At Part 11 of the MAC he said:
“There have been significant pre-existing degenerative changes in Ms Waite’s right hand and wrist. These have been demonstrated radiologically. A frequent deduction which is applied is one-tenth for a pre-existing condition. In this case, this would be at odds with the clinical information. Bearing in mind that a component of the pre-existing degenerative changes would be associated with her occupation in any case, a more conservative approach is taken with a deduction of one-third of the final whole person impairment. This therefore reduces the whole person impairment from 14% down to 9%.”
The Medical Assessor consequently certified the appellant had 9% WPI from her injury.
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 appellant to undergo a further medical examination because the material before the Appeal Panel is sufficient to enable the Appeal Panel to determine the appeal.
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.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant noted that her injury to her right hand and wrist was the “result of the nature and conditions of her employment working as a fettler over a period of 13 years”. The appellant submitted that the Medical Assessor erred by finding that the proportion of her permanent impairment from her injury due to pre-existing degenerative changes in her right wrist and hand was a third. The appellant submitted that the Medical Assessor did not reference in his reasoning the radiological scans that demonstrated the degenerative changes. The appellant submitted that the Medical Assessor did not explain how the pre-existing degenerative changes contributed to her current impairment and did not explain why a one-third deduction was appropriate.
The appellant submitted that the Medical Assessor did not articulate how the pre-existing condition caused or contributed to her impairment. The appellant submitted that Dr Doig considered she had a pre-existing degeneration in her wrist and made a deduction of 10% under s323 when assessing her impairment.
The appellant submitted that “the nature of the injury and pre-existing condition is difficult to determine what portion of the percentage arises due to the pre-existing right wrist osteoarthritis” (verbatim). That sentence is somewhat confusing but the Appeal Panel understands that by it the appellant submitted that the nature of her injury, which the appellant had earlier observed occurred over the course of 13-14 years of her employment with the respondent, is such that it would be difficult to determine the proportion of her impairment from her injury that is due to the pre-existing osteoarthritis in her wrist. The appellant submitted that the Medical Assessor in that circumstance ought to have made a deduction of one-tenth “in accordance with s323”.
The appellant also submitted that the Medical Assessor ought only to have made a deduction under s 323(1) to the impairment he assessed with respect to her wrist.
The respondent submitted that the appellant pled her case “as a personal injury” and the appellant did not allege that she contracted or aggravated a disease in the course of her employment. The respondent observed that both Dr Doig and Dr Machart made a deduction under s 323 for the proportion of the appellant’s permanent impairment that they considered was due to a pre-existing condition and the respondent submitted that the “issue was clearly before the [medical assessor]”.
The respondent submitted that the Medical Assessor expressed the view that it would be at odds with the available medical evidence to assume under s 323(2) 0f the 1998 Act that the deduction was to be one-tenth. The respondent submitted that the Medical Assessor provided adequate reasons as to why a one-tenth deduction would be at odds with the medical evidence because the Medical Assessor noted the pre-existing degenerative changes that had been demonstrated radiologically. The respondent submitted that the appellant had advanced osteo-arthritic changes.
The respondent submitted that there is a broad area for the Medical Assessor to exercise personal judgment in the application of s 323 and the respondent submitted that based on the medical evidence it was open to the Medical Assessor to make a one-third deduction in the exercise of his clinical and personal judgment. The respondent submitted that there was a sound evidentiary basis for the Medical Assessor to consider that a one-tenth deduction was at odds with the available evidence.
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.
The Appeal Panel does not accept the respondent’s submission that the appellant’s injury that the Medical Assessor was required to assess was a personal injury, by which the Appeal Panel understands the respondent to mean an injury occurring in a single event.
Dr Doig in his report of 8 July 2022, upon which the appellant relied to support her claim for compensation and which the appellant’s solicitors provided to the respondent’s insurer, set out a history relating to the appellant’s injury that the appellant had developed pain in her right wrist and hand as a consequence of her using a hand grinder for prolonged periods in the work she had undertaken for 14 years with the respondent. Dr Doig noted that the appellant’s condition worsened on 15 March 2021 but not due to any specific traumatic event on that date. Dr Doig said that the appellant appeared to have suffered deteriorating pain and stiffness in her dominant right wrist and an injury to the triangular fibro-cartilage complex and an aggravation of pre-existing degeneration and rupture of the sagittal-band to the dominant right middle finger. He said that the dominant right wrist and hand were injured in the course of employment. He said that the appellant’s employment resulted in the tearing of the triangular fibro-cartilage complex at the dominant right wrist and ruptured the sagittal radial band to the middle finger on a background of pre-existing degeneration which appears to have been aggravated.
Dr Machart in his report of 2 September 2022 also noted that the appellant had developed gradual onset of pain in her right hand and wrist over a period of 6 months before the date of injury of 15 March 2021, which he said was due to the repetitive use of a 2 kilogram grinder. He said there was no single injury on 15 March 2021.
In the Application to Resolve a Dispute the appellant described her injury as being due to her employment as a fettler and the repetitive use of an angle grinder.
The medical dispute that the Medical Assessor as required to assess was the medical dispute that was the subject of appellant’s claim for compensation. That dispute is determined by the correspondence passing between the parties, including the reports of the respective independent medical examiners that were exchanged between the parties.[1] Based on that correspondence and those reports, the Appeal Panel considers that the claim the appellant made against the respondent’s insurer, and which the insurer declined to meet, related to an injury to the appellant’s right hand and wrist that arose as a consequence of a specific work activity the appellant did as a fettler for a period of 13-14 years, specifically using a grinder. In the Appeal Panel’s view, it is apparent from the reports of both Dr Doig and Dr Machart that this is what they understood the injury to be. Both considered that the appellant’s injury was a consequence of that activity aggravating or worsening underlying degenerative changes in the appellant’s right hand and wrist.
[1] Skates v Hills Industries Ltd [2021] NSWCA 142 at [27]-[35], [44] and [46]; Sakr v Merrylands ChristianPreschool Association Inc [2022] NSWSC 768 at [40]-[44].
Both parties accept that a proportion of the appellant’s permanent impairment was due to degeneration in the appellant’s right wrist. The respondent’s position is also that degeneration also existed within the appellant’s thumb and fingers.
With respect to a deduction to be made under s 323(1) it is necessary to establish what the appellant’s pre-existing condition was at the “relevant date”.[2] In this case, given that the appellant’s injury arose as a consequence of a specific task she did over the 13 to 14 years of her employment with the respondent, specifically using a hand grinder, the pre-existing condition for which a deduction is to be made under s 323(1) must be a condition that was present at the start of her employment with the respondent.[3] To say that another way, given that the appellant’s injury occurred due to the effect that the task of using a grinder had on a pre-existing pathology and on her physiology over a course of time, the “relevant date” in this matter is the date on which this task commenced to have a deleterious effect on her pre-existing pathology and physiology, and that is at the start of her employment with the respondent.
[2] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 at [46] (Cullen).
[3] Cullen at [47]-[58]; Craigie v Faircloth & Reynolds Pty Ltd [2021] NSWSC 1211.
The Appeal Panel observes that the X-ray of the appellant’s right hand done on 16 March 2021 and the MRI scans done on 14 May 2021 and 1 September 2021 revealed that at that time there was extensive degeneration in the appellant’s right wrist and thumb and fingers. That is what the Medical Assessor also observed.
The degeneration revealed in those investigations was unlikely however to have been as extensive at the start of the appellant’s employment with the respondent. That conclusion is supported by the report on the X-ray done on 16 March 2021, in which it is said that the findings from that X-ray “have significantly progressed compared to the previous x-ray from April 22, 2015”. That earlier X-ray, which is not in evidence before the Appeal Panel, must therefore have revealed less extensive degeneration in the appellant’s hand in 2015 than the degeneration existing in her hand in 2021.
It is further likely that degeneration in her hand in 2015 would have also been more extensive than what it was at the start of the appellant’s employment with the respondent some eight years earlier. That circumstance would be a consequence of the degeneration she had in her wrist and hand at the time she commenced her employment progressing due to both the activity she was doing of using a grinder and also the natural progression of the degeneration.
The Appeal Panel observes, as an aside, that it is likely, as a consequence of the appellant having an X-ray done of her right hand and wrist in 2015, that she was then suffering some form of symptoms in her hand so as to necessitate the X-ray, which is contrary to what she said in her statement being that her symptoms commenced approximately six months before March 2021.
Hence, the situation is that the evidence available to the Medical Assessor indicated that in all likelihood the degeneration in the appellant’s right wrist and fingers and thumb that was revealed in the investigations done in 2021 was not nearly as extensive as what it would have been when she commenced her employment in 2008. In the Appeal Panel’s view it would necessarily be difficult to determine exactly the extent to which her pre-existing condition, at the relevant date, contributed to her permanent impairment from her injury and this is because the available evidence does not indicate exactly what the degeneration was at the relevant date. The available evidence only indicates that it was not nearly as extensive as it was at the time of assessment.
The Appeal Panel consequently accepts the appellant’s submission that the Medical Assessor erred by not assuming that the deduction to be made under s 323(1) for the proportion of her permanent impairment that was due to a pre-existing condition, was 10%. Making that assumption was not at odds with the available evidence.
For these reasons, the Appeal Panel has determined that the MAC issued on 19 April 2023 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W7172/22 |
Applicant: | Linda Waite |
Respondent: | Albury Galvanising Pty Ltd |
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 Dr Tim Anderson 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) |
| Right upper extremity | 15/3/2021 | P 456 P 457 P 459 and 8b and T 16-09 P 439 P 467 P 469 P 464 P 463 P 461 P 439 | 14% | 1/10 | 13% | |
| scarring | 15/3/2021 | Table 14.1 | 0% | - | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 13% | |||||
0
5
0