Cincotta v PCYC: Causation in the context of medical disputes in the NSW Workers Compensation Commission

07 November 2018

On 23 October 2018, the Supreme Court of NSW handed down its decision in Cincotta v Police Citizens Youth Club NSW Ltd & Ors [2018] 1588. The Chief Judge at Common Law, Justice Clifton Hoeben, determined that the worker could not seek judicial review of the decision contained in the Medical Assessment Certificate (MAC) of the Approved Medical Specialist (AMS) in circumstances where there was a superseding Medical Appeal Panel (MAP) decision, and that the AMS and MAP were required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the subject injury.

Background

The worker injured his lower back in the course of employment on 2 October 2015 when he tripped over on an uneven section of carpet while he was exiting his office (the injury). The worker suffered a consequential left foot drop as a result of lumbar spinal surgery performed on 8 December 2015.

The worker claimed permanent impairment compensation in accordance with his medical expert’s assessment of 22% whole person impairment (WPI) as a result of the injury to his lumbar spine. Dr Miniter, on behalf of the employer’s insurer, assessed the worker as having 6% WPI as a result of the injury. The worker’s claim was disputed and the matter proceeded to the Workers Compensation Commission (Commission). The primary medical dispute that was referred to the AMS without objection was whether the worker had permanent impairment in relation to his “lumbar spine, peripheral spinal nerve roots impairment (left)” as a result of the injury. The worker had previously been compensated for 24% WPI in relation to an unrelated injury to his lumbar spine in 2008.

On 29 September 2017, AMS Dr Mohammed Assem, orthopaedic surgeon, issued a MAC (MAC1) in which he assessed the worker as having 14% WPI in relation to his lumbar spine. The worker sought reconsideration of MAC1. On 22 November 2017, the AMS issued a second MAC (MAC2) which assessed 0% WPI of the peripheral nerve. This superseded MAC1.

The worker appealed MAC2 on the basis that the assessment was made on the basis of incorrect criteria, and that MAC2 contained a demonstrable error.

The matter was referred to a MAP which confirmed MAC2. In its decision, the MAP noted the worker’s argument was that “the AMS wrongly uses an analogous condition in making his assessment, and failed to examine the worker’s power and motor deficit“. The MAP found the worker’s submissions were misconceived and concluded that the “AMS clearly explained his reasons for concluding that features of neurological abnormality were unrelated to the injury, and consistent with a diabetic polyneuropathy, and his findings were consistent with the totality of the evidence.”

Grounds of review

The worker sought judicial review of both the MAP decision and MAC2. In summary, the grounds were that the AMS and MAP:

  1. Acted beyond jurisdiction by finding that the worker did not suffer injury to his peripheral nerve roots as a result of the injury;
  2. Asked the wrong question, which was whether the peripheral neuropathy was a work-related injury, rather than asking whether the left foot drop was caused by damage to the peripheral nerve roots as a result of the work injury;
  3. Failed to carry out their statutory task of determining the degree of permanent impairment resulting from the work injury in circumstances where it had been accepted that there was a consequential work-related left foot drop; and
  4. Failed to consider evidence that the injury to the worker’s lower back precipitated the weakness in the left leg earlier than otherwise would have happened or that there was post-operative foot drop on a background of peripheral neuropathy.
Discretion to grant prerogative relief

Before considering the grounds, his Honour commented that, as a matter of discretion, he would decline to deal with the worker’s challenge to MAC2. He considered that once the MAP had issued its decision, that became the operative decision pursuant to sections 328(5) and 329 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act). He also considered the appeal procedure in s327 of the 1998 Act was a more appropriate remedy than judicial review proceedings pursuant to s69 of the Supreme Court Act 1970 (NSW). His Honour observed this right was exercised in this case.

Consideration

His Honour accepted that liability in relation to the fall and anything consequential upon it was not in issue, but that there was an issue as to whether the impairment arising from the worker’s left foot drop resulted from the injury.

His Honour, in drawing a similar conclusion to that of Emmett AJA in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, and referring to paragraphs (c) and (d) of the definition of “Medical dispute” in s 319 of the 1998 Act, found that the AMS and MAP were required to consider the degree of permanent impairment resulting from both the injury and other causes and to apportion responsibility.

His Honour further stated:

Once this is accepted, it is apparent that the AMS and Appeal Panel were required to engage in such assessment of causation as was necessary to discharge their statutory task of determining the degree of permanent impairment resulting from the injury in question.

Based on the above, his Honour ultimately found that the MAP did not commit jurisdictional error by misdirecting itself as to its statutory task, nor did it ask itself the wrong question.

Conclusions

The take-outs from this decision are:

  • The Court will not be inclined to allow parties to seek judicial review of a MAC in circumstances where there is an MAP decision which supersedes it.
    For the purposes of s 66 of the Workers Compensation Act 1987 (NSW), the question of causation, being whether the worker’s permanent impairment was as a result of the injury, is properly a matter for an AMS to consider.
  • The decision also solidifies the position in Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264, namely that an AMS or MAP can make findings of fact necessary for the performance of their function, and that the language of causal connection is squarely within the definition of “medical dispute” in s 319 of the 1998 Act.
  • Care should be taken in reviewing the referral to the AMS. As in this case, referring the pathology, as opposed to simply the body part or parts affected by the injury, might invite confusion.

This article was written by Tim Ainsworth, Partner, John Fennel, Solicitor and Kerrie Pieri, Graduate-At-Law.

Tim Ainsworth

P: +61 2 9334 8649

E: tainsworth@hwle.com.au

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