Young Mining Company Pty Ltd v Hoerler
[2022] NSWPICMP 245
•8 June 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Young Mining Company Pty Ltd v Hoerler |
| APPELLANT: | Young Mining Co Pty Limited |
| RESPONDENT: | Eric Joseph Hoerler |
| APPEAL PANEL: | Member R J Perrignon Dr Roger Pillemer Dr John Brian Stephenson |
| DATE OF DECISION: | 8 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION- Appeal from assessment of 23% whole person impairment (6% cervical spine; 0% thoracic spin; 5% lumbar spine; 9% left upper extremity; 6% right upper extremity) as a result of injury on 31 January 2018 (deemed date) due to the nature and conditions of employment from 1987; frank injuries to the neck and back in 1994 and to the left elbow in 1997 were separately assessed under the Table of Disabilities; whether assessor erred in failing to make a deduction for the effects of those frank inures when assessing whole person impairment as a result of injury on 31 January 2018 (deemed date); Medical Assessment Certificate confirmed. |
BACKGROUND TO THE APPLICATION TO APPEAL
The appellant employer appeals from the Medical Assessment Certificate of Medical Assessor Anderson dated 17 January 2022.
The respondent worker, Mr Hoerler, had worked as a labourer in the employer’s open cut mine at Young for over 30 years. On a number of occasions, he had suffered frank injuries to various body parts, including but not limited to the neck, back and left elbow.
In his Application to Resolve a Dispute, he claimed further compensation, in addition to that already paid, for permanent impairment under the Table of Disabilities as a result of frank injuries on various dates. He also claimed compensation for impairment of the whole person as a result of the nature and conditions of his employment from 1 July 1987 to 31 January 2018, when he ceased to work for the respondent. The deemed date for the latter injury was pleaded as 31 January 2018.
Dr Anderson assessed the following under the Table of Disabilities, after making a deduction of 1/10th in each case (except the last) for the effects of a pre-existing inflammatory condition of diffuse interstitial skeletal hyperostosis (DISH):
(a) 18% permanent impairment of the neck as a result of injury on 13 September 1994;
(b) 18% permanent impairment of the back as a result of injury on 13 September 1994;
(c) 18% permanent loss of efficient use of the left arm at or above the elbow as a result of injury on 1 July 1997, and
(d) 0% permanent loss of efficient use of the left leg at or above the knee as a result of injury on 11 August 1998.
Dr Anderson also assessed a 23% whole person impairment (6% cervical spine, 0% thoracic spine, 5% lumbar spine, 9% left upper extremity, 6% right upper extremity) as a result of injury on 31 January 2018 (deemed date), due to the nature and conditions of employment from 1987.
In respect of his assessments of the cervical spine and lumbar spine, he deducted 1/10th for the effects of pre-existing DISH, as he had done in his assessments under the Table of Disabilities.
After the appeal proceedings had commenced, an amended Medical Assessment Certificate was issued on 22 February 2022. This corrected two obvious errors of a clerical nature in the whole person impairment Table, in the following way
(a) The various dates of frank injury specified in the whole person impairment Table were amended to read 31 January 2018. As indicated, this was the deemed date of the disease injury, pleaded to have resulted from the nature and conditions of employment. This reflected the requirements of the referral document, as was confirmed at the commencement of the original Medical Assessment Certificate of 17 January 2022.
(b) The percentage whole person impairment attributed to each body system was aggregated to yield a total whole person impairment of 23%.
The errors corrected in this way formed two of the three grounds of appeal relied on by the appellant employer. As they have been corrected, is it unnecessary to consider them further.
The appellant relies on one further ground of appeal: namely that, in assessing whole person impairment, the Assessor failed to consider whether there should be, and to make, a deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for the effects of frank injuries in 1994 and 1997. They were injury to the neck and back on 13 September 1994, and injury to the left elbow on 1 July 1997.
No error is alleged in respect of Dr Anderson’s assessments under the Table of Disabilities.
On 20 April 2022, the President’s delegate found that the ground of demonstrable error was capable of being made out, and referred the matter to this Appeal Panel for determination.
The Appeal Panel conducted a preliminary review of Dr Anderson’s medical assessment in the absence of the parties and in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) (the Guidelines).
Submissions
In brief summary, the appellant employer submits as follows:
(a) the Assessor failed to take or record a history of injury on 31 August 2018 (deemed date);
(b) in respect of the cervical spine and lumbar spine, he deducted one-tenth for the effects of a pre-existing condition, but failed to consider whether a deduction for the effects of frank injuries in 1994 (to the neck and back) and 1997 (to the left elbow) should be made, and failed to make such deductions, and
(c) as the Assessor concurrently assessed under the Table of Disabilities that permanent impairment to each such body part was persisting as a result of frank injuries in 1994 and 1997, it must follow that those frank injuries were currently contributing to impairment of the whole person, and a deduction should have been made.
Doing our best to understand the submissions made by Mr McCabe on behalf of the worker, we summarise them as follows:
(a) the worker had claimed permanent impairment compensation as a result of frank injuries on various dates, and compensation for impairment of the whole person as a result of a disease injury deemed to have occurred on 31 January 2018, caused or aggravated by the nature and conditions of employment. The worker had ceased work on the deemed date of injury;
(b) the documents before the Assessor indicated the compensation already received by the worker for assessments of permanent impairment of various body parts prior to the assessment, and the Assessor is taken to have been aware of those facts;
(c) it was the task of the Assessor to assess the degree of permanent impairment as a result of injury on each of the dates specified in the referral. It formed no part of his function to apportion impairment between the dates of injury, or between the deemed date of injury and the dates of frank injury;
(d) at [11] of the Medical Assessment Certificate, the Assessor indicated that he had deducted 1/10th from his assessments of whole person impairment in respect of the cervical and lumbar spine, for the effects of pre-existing DISH, but had made no deduction for any other condition or injury, and
(e) when assessing permanent impairment as a result of injury due to the nature and conditions of employment from 1988 to 2018, a deduction can only be made if a pre-existing condition is shown to have existed prior to 1988 [sic, 1987]. There is no evidence to suggest that any such condition existed prior to 1988. Should the Panel decide to examine the worker, it should make no deduction at all.
Whether a deduction should have been made for the effects of injury in 1994 and 1997
As indicated, on the date of examination the Assessor assessed the respondent under the Table of Disabilities as suffering permanent impairment as follows:
(a) 18% permanent impairment of the neck as a result of injury on 13 September 1994;
(b) 18% permanent impairment of the back as a result of injury on 13 September 1994, and
(c) 18% permanent loss of efficient use of the left arm at or above the elbow as a result of injury on 1 July 1997.
It follows that Dr Anderson considered that the ongoing effects of injuries on those dates to the neck, back and left elbow were contributing to the current impairment of each such body part, and of the relevant body system to which each such body part belonged.
As indicated, the respondent worker had also claimed compensation for impairment of the whole person as a result of injury on 31 January 2018 (deemed date), caused or aggravated by to the nature and conditions of his employment from 1 July 1987 to 31 January 2018. That claim invoked the disease provisions of sections 15 and 16 of the Workers Compensation Act 1987 respectively, which provided for a deemed date of injury.
As was accepted in Cullen v Woodbrae Holdings Pty Limited [2015] NSWSC 1416 (though the issue was not in dispute), where the disease provisions apply and a disease is alleged to have been contracted, or aggravated, over a period of time, a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 for a pre-existing condition is only available where the Assessor finds that the condition existed before that period of time, even if it was asymptomatic. It is not enough to show a mere predisposition or susceptibility to contracting the disease or condition: per Beech-Jones J at [46].
In this case the appellant employer submits that, in assessing whole person impairment as a result of the injury on 31 January 2018 (deemed date), deductions should have been made for the effects of injury in 1994 and 1997. Those injuries did not pre-date the period of employment from 1987 to 2018, during which it was alleged that conditions resulting in impairment of the whole person were caused or aggravated by the nature and conditions of employment.
It follows that, in assessing whole person impairment due to the nature and conditions of employment from 1987, no deduction is available under section 323 for the effects of injury during the course of that employment in 1994 and 1997. We can identify no error, or the application of incorrect criteria, in the omission to make any such deduction.
It follows that we do not have power to examine the worker. As there has been no appeal by the worker, and no decision has been made by the President’s delegate in respect of any such appeal, it is unnecessary to consider further the respondent’s submission that there should have been no deduction for the effects of DISH.
Conclusion
For those reasons, the Medical Assessment Certificate of Dr Anderson is confirmed.
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