Wilson v Ausgrid Management Pty Ltd
[2022] NSWPICMP 220
•18 May 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Wilson v Ausgrid Management Pty Ltd [2022] NSWPICMP 220 |
| APPELLANT: | Craig Wilson |
| RESPONDENT: | Ausgrid Management Pty Ltd |
| APPEAL PANEL: | Member John Wynyard Dr Tommasino Mastroianni Dr Roger Pillemer |
| DATE OF DECISION: | 18 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal against a 1/3rd deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998; whether Medical Assessor (MA) had considered the wrong injury as a result of mistaking the terms of the referral; whether deduction permissible in asymptomatic cases; Held- asymptomatic cases can attract a deduction, Vitaz referred to; however by failing to follow the terms of the referral that the injury date was deemed, the MA made a demonstrable error, Cullen v Woodbrae Holdings Pty Ltd, Craigie v Faircloth & Reynolds referred to; MA did not consider whether appellant suffered from a pre-existing injury when he commenced with the employer 20 years earlier; MA relied on the appellant’s pre-existing condition as at the deemed date; Held- Medical Assessment Certificate revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 22 December 2021 Craig Wilson, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Robert Kuru, a Medical Assessor (MA), who issued a Medical Assessment Certificate (MAC) on 15 December 2021.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· 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.
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 the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guides) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI" is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 18 October 2021 an amended referral was made to the MA seeking an assessment of WPI to the cervical spine and by scarring – TEMSKI, following an injury date described as:
“28 October 2016 – deemed”
On 16 June 2020 Arbitrator Burge (as he then was) issued a determination in matter 1467/20, which found the respondent liable for the injury to his cervical spine “by way of an aggravation to underlying degenerative changes, with a deemed date of injury of 28 October 2016.”[1] This decision was not appealed.
[1] Appeal papers p 56.
The appellant was employed as a storeman with the respondent. He was employed by the respondent employer on 10 January 2000 as an Electricity Supply Operative for six months and then was transferred to the Overhead Sections at Noraville Depot. His role at that time involved receiving and putting away stock delivered in from both the Main Store as well as third party suppliers and/or contractors.
The MA recorded a “brief” history that Mr Wilson’s duties were changed from being a supply operative on 14 October 2016, which required Mr Wilson being required to sit at a desk on a computer. Mr Wilson experienced quite quickly an increase in pain in his neck with symptoms radiating down his left arm into his ulnar digits.
The appellant was referred to Dr Singh, with whom he came to surgery on 28 August 2020 in the form of a C5/6, C6/6 anterior cervical discectomy and fusion.
The MA assessed 28% WPI for the cervical spine, from which he deducted 1/3rd pursuant to s 323 of the 1998 Act. He assessed no WPI in relation to the scarring.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The worker did not seek to be re-examined by a panel member.
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 which have been considered by the Appeal Panel.
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 issue raised in the appeal was a challenge to the assessment by the MA of a deduction of 1/3rd pursuant to s 323 of the 1998 Act.
The MAC
The MA, in listing the matters that had been referred to him, recorded the date of injury as being “28 October 2016.”[2] He did not add that the date was a deemed date.
[2] Appeal papers p 22.
The MA did not take any history of the period Mr Wilson had been employed by the respondent. As indicated, he simply noted that on 14 October 2016 Mr Wilson’s duties were changed from a supply operative to an office role working on a computer, and that his neck symptoms increased quickly with symptoms radiating down the left arm into the ulnar digits.
In his summary of injuries and diagnoses, the MA said:[3]
“Mr Wilson has aggravated pre-existing degenerative disease in his neck without specific incident and has gone on to have surgery in the form of a C5/6, C6/7 anterior cervical discectomy and fusion. ….”
[3] Appeal papers p 24.
In the templated portion of the MAC which seeks an explanation of the MA’s calculations at [10b], the MA discussed reasons why he assessed the total of 28% WPI and 0% for the skin. He did not at that point mention the s 323 deduction.
However, at paragraph [11] he said:
“a. “In my opinion the worker suffers from the following relevant previous injuries, pre-existing conditions or abnormalities:
(i)Degenerative spondylosis in the cervical spine.
b. The previous injury, pre-existing condition or abnormality directly contributes to the following matters that were taken into account when assessing the whole person impairment that results from the injury, being the matters taken into account in 10a, and in the following ways:
(i) The injury represents aggravation of underlying degenerative disease.
c. Whilst 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. In my opinion the deductible proportion is one third for the following reasons:
(i) The pathology clearly is that of pre-existing degenerative disease which became symptomatic without specific incident. The imaging demonstrates broad based disc pathology consequent to protein change rather than acute disc protrusion. An assessment of 1/10th deduction s 323(2) is inconsistent with the available evidence.”
Submissions
The appellant worker
The error made by the MA, it was contended, was that he determined a different cause of injury to that referred for assessment.
The appellant submitted that the MA had not referred to evidence concerning his pre-existing condition. He referred to the opinions of the two medicolegal specialists, noting that Dr New, the orthopaedic surgeon he had qualified, advised that no deduction was appropriate pursuant to s 323, and that Dr Rimmer, the expert qualified for the employer, had assessed a deduction of 1/10th.
The appellant referred to a number of authorities as to the application of s 323. The thrust of Mr Wilson’s submissions was that a deduction as high as one third was not applicable where an asymptomatic condition had been rendered symptomatic. We were referred to Cole v Wenaline Pty Ltd,[4] “D’Aleo”[5], Fire & Rescue NSW v Clinen[6], Elcheikh v Diamond Formwork (NSW) Pty Ltd[7] and Ryder v Sundance Bakery.[8]
[4] [2010] NSW SC 78.
[5] No citation was given.
[6] [2013] NSW SC 629 (Clinen).
[7] [2013] NSW SC 365.
[8] [2015] NSW SC5 to 6 (Ryder).
Passages from Clinen were cited to the effect that there had to be evidence available in support of a finding that a pre-existing condition was actually contributing to the impairment caused by the subject injury.
It was submitted that a finding of “degenerative change” was insufficient to warrant a deduction, and that more was needed. We were referred to an MRI scans of 16 February 2017 and 24 September 2018, which the appellant conceded were relevant, but not conclusive in establishing that there was an impairment caused by the pre-existing condition which contributed to the WPI caused by the subject injury, as we understood the submission. There was, it was contended, a “clear distinction” between an asymptomatic pre-existing condition and impairment.
It was submitted that the “fundamental problem” with the MA’s finding was that he had assumed that the existence of a pre-existing condition meant that a deduction had to be applied. We were referred to Ryder as authority for the uncontroversial proposition that that a deduction cannot be assessed on the basis of assumption or hypothesis.
The respondent employer
We were referred to the determination of Arbitrator Burge and his acceptance of the opinion by Dr New that the heavy work performed over many years had rendered the cervical spine pathology symptomatic and caused the onset of radiculopathy, which worsened in 2016. The respondent submitted:[9]
“Dr New accepted that the work over 18 years, as well as the change in duties in September 2016, had caused the degeneration to become symptomatic.”
[9] Appeal papers p 19.
The respondent conceded that the Arbitrator found that Mr Wilson had worked in repetitive heavy work for 16 years which had aggravated the pathology in his cervical spine.
The explanation given by the MA at [11] correctly identified that Mr Wilson was suffering from a pre-existing condition, namely degenerative spondylosis. The evidence before the MA supported that finding, particularly the statement of the appellant himself, it was submitted. We were referred also to the opinion of the treating general practitioner, Dr Lim that “years of heavy labouring work with Ausgrid had aggravated the cervical spine degeneration.”
We were referred to the MA’s opinion which we have reproduced above that the imaging demonstrated a broad-based disc pathology consequent to protein change rather than acute disc protrusion, and that accordingly an assessment of 1/10th was inconsistent with the available evidence. There was accordingly it was submitted no inconsistency between the finding of the MA and the evidence that was before him.
We were referred to Wingfoot Australian Partners Pty Ltd v Kocak[10] and the oft quoted statement that it was only necessary for an Appeal Panel to explain the actual path of reasoning. We would observe that in Western Sydney Local Health District v Chan[11] it was held that the same obligation rested on an MA, or Approved Medical Specialist (AMS), as they were then known.
[10] [2013] HCA 43.
[11] [2015] NSWSC 1968 at [13].
The respondent submitted that the MA considered all the evidence, including the length of employment and the type of work performed and thus we understood the submission to contend, the assessment of the deduction pursuant to s 323 was open to him.
DISCUSSION
The submissions made by the respondent accurately reflect the factual background to this matter and it is accordingly not necessary to review the evidence in detail.
Mr Wilson commenced with the respondent employer on 10 January 2000, and the work with which he was involved was heavy labouring work. We do not accept the appellant’s submission that an asymptomatic condition, when rendered symptomatic as a result of the work being performed, cannot attract a deduction. That proposition was considered and rejected in Vitaz v Westform (NSW) Pty Ltd.[12]
[12] [2011] NSWCA p 254 at [43].
However, the applicant has correctly identified error in his submission that the MA determined a different cause of injury to that referred for assessment. The issue arises because, as we noted, the MA did not comply with the terms of the referral. The date of injury in the referral did not indicate a personal injury, which is the legal effect of his failure to record that the date of injury referred was a “deemed” date. This latter description defines a separate class of injury within the term “injury.” Section 4 of the Workers Compensation Act 1987 (1987 Act) provides relevantly:
"‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
If an injury is a disease injury, the procedural sections at ss 15 and 16 of the 1987 Act provide how liability is to be decided.
Sections 15 and 16 provide relevantly:
“15 DISEASES OF GRADUAL PROCESS--EMPLOYER LIABLE, DATE OF INJURY ETC
(cf former ss 7 (4), (4C), (5), 16 (1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process-
(a) the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii)if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
16 AGGRAVATION ETC OF DISEASES--EMPLOYER LIABLE, DATE OF INJURY ETC
(cf former ss 7 (4A), (5), 16 (1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(a)the injury shall, for the purposes of this Act, be deemed to have happened-
(i) at the time of the worker's death or incapacity, or
(ii)if death or incapacity has not resulted from the injury--at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
It can be seen that these two procedural provisions deem the last employer to be liable in their specific circumstances, and hence the word “deemed” in a referral is an indication that an injury is a disease injury. The application of s 323 to the disease categories of injury carry different assessment criteria, because the injury is deemed to have occurred over the entire period of employment. The question is not whether a worker had any pre-existing condition at the date ascribed to his injury, but rather at the commencement of employment[13]. The MA has accordingly misconceived his task in applying the provisions of s 323. The relevant date was 10 January 2000.
[13] Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1415 (Cullen).
In applying Cullen, Johnson J in Craigie v Faircloth & Reynolds Pty Ltd[14] set out the argument before him from [33]:
“33. Mr Hickey, counsel for the Plaintiff, submitted that the Medical Appeal Panel had missed a critical aspect of the Plaintiff’s argument, namely that, as Cullen requires, before the Approved Medical Specialist could proceed to assess the extent of any deduction for a pre-existing condition, it was necessary to determine that such condition relevantly pre-existed at the commencement of the Plaintiff’s employment in 2007. It was submitted that neither the Approved Medical Specialist nor the Medical Appeal Panel made any such critical finding and thus had committed the same type of error as found in Cullen.
34. ….
35. It will be apparent from the ‘Parties’ Consent Statement’ set out earlier (at [9]) that the First Defendant agrees that there was a failure on the part of the Medical Appeal Panel to apply the principles in Cullen.
36. In Cullen, Beech-Jones J (as his Honour then was) said (at [46]) that to establish a pre-existing condition for the purpose of s.323(1) WIM Act, there must, at a ‘relevant date’, be an actual condition, although it may be asymptomatic. His Honour observed in Cullen (at [56]) that the Medical Appeal Panel had not identified ‘any point in time much less prior to his employment commencing when Mr Cullen may have first developed osteoarthritis albeit asymptomatic’. The MA did not refer to the nature and conditions of Mr Wilson’s employment prior to his change in duties on 14 October 2016 and the MA appears to have assumed that the injury actually occurred on 28 October 2016, after Mr Wilson’s transfer to desk work.”
[14] [2021] NSWSC 1211.
The MA has fallen into error because he has not complied with the terms of the referral. It is settled law that, unless they do not reflect the agreement between the parties, the terms of a referral are binding on an MA[15]. In the present case the terms of the referral were agreed, and indeed accurately reflected the Certificate of Determination issued by Arbitrator Burge.[16]
[15] Skates v Hills Industries Ltd [2021] NSW CA p 142.
[16] Appeal papers p 56.
When Mr Wilson commenced employment with the employer on 10 January 2000, he was 33 years old. There is no evidence that he was suffering from any pre-existing condition at that time. We concur with the opinion of Dr Charles New, orthopaedic surgeon, expressed on 28 March 2019 as to causation. Dr New said:[17]
“…. It was my opinion that the patient’s condition was caused by the general nature and conditions of the scope of duties of his employment in both phases. I would confirm that it is the nature and conditions of his employment performed over 18 years, as well as the change in his duties in September 2016, which have caused degeneration in his neck, despite him being asymptomatic prior to going off work following his initial report of pain.
I note that the patient did not suffer any incapacity prior to September 2016. I remain of the view that the nature and conditions of the employment which involved repetitive heavy lifting above shoulder height over a period of 18 years would be the cause for the current condition. The natural history of this type of activity will cause wear and tear on the cervical spine which produces the cervical spondylosis.”
[17] Appeal papers p 92.
Whether the nature of the work caused or aggravated Mr Wilson’s condition, there is no evidence that he was suffering from a cervical spondylosis when he commenced employment, and accordingly no deduction should be made pursuant to s 323.
For these reasons, the Appeal Panel has determined that the MAC issued on 22 December 2021 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Robert Kuru 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 NSW workers compensation guidelines | 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) |
| Cervical spine | 28/10/16 | Page 28 Par 4.34 Page 29 Par 4.37 Par 4.2 | Page 392 Table 15-6 | 28% | 0 | 28% |
| Scarring (TEMSKI) | 28/10/16 | Page 74 Table 14.1 | 0% | 0 | 0% | |
| Total % WPI (the Combined Table values of all sub-totals) | 28% | |||||
John Wynyard
Member
Tommasino Mastroianni
Medical Assessor
Roger Pillemer
Medical Assessor
18 May 2022
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