Abbott v Kitome Pty Ltd

[2023] NSWPIC 197

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Abbott v Kitome Pty Ltd [2023] NSWPIC 197

Claimant:

Warren Abbott

insurer:

Kitome Pty Ltd

Member:

Jill Toohey

DATE OF DECISION:

2 May 2023

CATCHWORDS:

WORKERS COMPENSATION - Terms of referral to a Medical Assessor (MA); accepted injury to both knees and scarring; claim for lump sum compensation; no dispute matter to be referred to MA for assessment of degree of permanent impairment; dispute as to terms of referral; description of body parts; applicant maintained body parts referred should be “left lower limb” and “right lower limb”; respondent maintained should be “left lower limb (knee)” and “right lower limb (knee)”; application of Skates v Hills Industries Ltd; Held – the parties’ correspondence crystallised the dispute to one of degree of permanent impairment as result of injury to left and right knees; referral to MA to reflect injury accordingly; body parts referred to MA to read “left lower limb (knee)” and “right lower limb (knee)” and TEMSKI scarring.

determinations made:

1. The matter is to be remitted to the President Pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for referral to a Medical Assessor to assess the degree of whole person impairment as follows:

Date of injury: 20 September 2018

Body parts/systems:Left Lower Extremity (knee), Right Lower Extremity (knee), Scarring (TEMSKI)

The documents to be referred to the Medical Assessor are:The Application to Resolve a Dispute and attachments, The Reply and attachments, A copy of this Determination.

STATEMENT OF REASONS

BACKGROUND

1. On 20 September 2018, Warren Abbott (the applicant) was working as a forklift driver for Kitome Pty Ltd (the respondent). He was loading building supplies onto shipping containers when roofing material weighing approximately 2.5 tonnes fell onto him, crushing his legs.

2. The respondent accepted liability for Mr Abbott’s physical injury and for a primary psychological injury.

3. The present dispute concerns Mr Abbott’s entitlement to lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns the wording of a referral to a Medical Assessor for assessment of his whole person impairment as a result of his injury.

4. By an Application to Resolve a Dispute (ARD) lodged with the Personal Injury Commission (Commission) on 2 February 2023, Mr Abbott claimed compensation for injury described, relevantly, as “significant lower limb injuries”. He claimed whole person impairment of 20% and 27% for the “right lower extremity” and “left lower extremity” respectively, and “TEMSKI scarring”.

5. On 24 March 2023, a delegate of the President issued a proposed referral to a Medical Assessor for assessment of permanent impairment pursuant to s 293 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The referral described the body parts referred to the Medical Assessor as:

   “Left Lower Extremity, Right Lower Extremity, Scarring (TEMSKI)”

6. The respondent objected to the terms of the referral and a telephone conference was convened. The respondent maintains that the body parts referred should read:

   ““Left Lower Extremity (knee), Right Lower Extremity (knee), Scarring (TEMSKI)” (emphasis added)

ISSUES FOR DETERMINATION

1. The parties agree that the issue remaining in dispute is the wording of the referral to the Medical Assessor.

PROCEDURE BEFORE THE COMMISSION

1. A telephone conference was held on 3 April 2023. The applicant was represented by Mr Ryan Brown of counsel, instructed by Ms Hanna Survery. The respondent was represented by Ms Jade Bowdler.

2. The parties could not agree on the wording of the referral to the Medical Assessor. They agreed to file written submissions and for me to determine the matter on the basis of their submissions, without a formal hearing.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    ARD and attached documents, and

   (b)    Reply and attachments.

2. The parties’ written submissions are outlined below.

Mr Abbott’s statements of evidence

1. Mr Abbott has provided statements of evidence dated 8 February 2022 and 2 August 2022.[1] He describes how a load of roofing material weighing 2.5 tonnes fell on his “lower limbs crushing [his] legs”. He was taken to Nepean Hospital emergency department. Subsequently, his general practitioner organised scans and referred him to Dr Eli Olschewski, orthopaedic surgeon, who diagnosed “soft tissue damage, right leg haematoma and associated nerve damage which caused reduced sensation to [his] limbs.” His left knee was found to be “badly damaged as the incident had caused several fractures and ligaments tears in the joint.” He was given a brace for his left knee and, on 26 November 2018, underwent a left knee arthroscopy, patellofemoral chondroplastic and partial medial meniscectomy ligament repair. He continued to experience “significant nerve damage and inflammation to both [his] knees”. Injections had little to no effect and, in December 2019, he underwent a total left knee replacement. He describes how his “bilateral lower limbs” remain painful with inflammation and he has difficulty walking. He describes ongoing pain in his right calf and right foot, and a number of falls when his right leg has given way.

   [1] ARD pages 1 and 11.

Claim forms

1. The respondent’s Register of Injury dated 20 September 2018 describes the type of injury and parts of the body injured as “scratches and abrasions on lower right leg, scratches and abrasions on lower left leg, mussel [sic] in upper left leg squashed/damaged”.[2]

   [2] ARD page 64.

2. The insurer’s notice of injury form describes a “bruise/crush injury” and the injured part as “legs (includes hips and feet), specifically, “upper leg//thigh”.[3]

   [3] ARD page 65.

Dr Olschewski’s report

1. Orthopaedic surgeon, Dr Eli Olschewski, treated Mr Abbott and reported to his solicitors on 21 January 2021.[4] He described how roofing material struck Mr Abbott “on the lateral side of the left knee and leg in the medial side of his right calf.” He described in detail the progress of the left knee following the injury, leading to total knee replacement. He summarised the injury as “a left knee injury … and MCL sprain, lateral tibial plateau fracture and medial meniscus tear”. He said the right calf injury “was being managed by Dr Sharma at that time”. He noted an “obvious antalgic gait”.

   [4] ARD page 71.

Dr New’s assessment

1. Dr Charles New, orthopaedic surgeon, saw Mr Abbott for assessment on 11 February 2021 and provided a report dated 18 February 2021.[5] He took a history of the injury consistent with Mr Abbot’s evidence.

   [5] ARD page 19.

2. In what appears to be a reference to Mr Abbott’s presentation to Nepean Hospital immediately following the accident, Dr New stated that he was “diagnosed with soft tissue injuries to his right leg and a haematoma. He had pain in his left knee.” He noted that Mr Abbott was subsequently referred to Dr Olschewski and “was diagnosed with a significant injury to his left knee.”

3. Under Pain Disability Assessment, Dr New noted “bilateral knee pain and shin pain on the right hand side…. The left knee is more severely painful than the right knee.” On examination he noted a prominent scar consistent with total left knee replacement, and “near normal range of movement” in the right knee with some instability. He noted scans of Mr Abbott’s left knee, right calf, and chest and right-sided ribs.

4. Dr New reported in response to “specific questions”, that Mr Abbott continued to have debilitating pain in his left knee. He said Mr Abbott stated “categorically” that he had no knee pain previously. He said Mr Abbott had a “a significant injury to his knee which has required two surgeries”. His employment with the respondent was a substantial contributing factor to “his injury”.

5. In a report dated 18 February 2022, Dr New assessed whole person impairment of the right knee as 20% based on “Table 17.5 – Gait derangement” of the “AMA Guides 5^th Edition.” He assessed whole person impairment of the left knee as 27% based on “Table 17.35 - Knee replacement”. He assessed TEMSKI scarring as 5%.

6. Dr New provided a supplementary report dated 29 April 2022.[6] He noted that Mr Abbott continued to have “an antalgic gait favouring his left hand side”. He noted an ultrasound and X-ray of his foot and ankle. He noted that Mr Abbott’s gait had become “significantly worse”. He stated that he was “happy with the calculations” he did previously and the structure and content of his report.

   [6] ARD page 26.

7. Dr New provided a further report dated 6 July 2022 in which he stated he had reviewed Mr Abbott again. There was “no ongoing right haematoma” and he believed his assessment was correct.[7]

   [7] ARD page 28.

Dr Breit’s assessment

1. Dr Robert Breit, orthopaedic surgeon, assessed Mr Abbott on 11 May 2021 at the request of the respondent.[8] He took a similar history of the injury, noting that Mr Abbott described a “crush injury over the anterior tibial bilaterally on the left closer to the knee but not involving either knee or ankle.” On the right, he said he was “told there was a massive haematoma.” Dr Breit said he was “told that it took months for the right calf haematoma to settle” and Mr Abbott now complained of “anterior tibial activity related pain with altered foot sensation” which made it difficult for him to drive. As to present complaints, Dr Breit noted that Mr Abbott said he felt his right knee was going to give way and his left knee ached all the time.

   [8] ARD page 40.

2. Dr Breit noted investigations of Mr Abbott’s left knee, right foot and ankle and right lower leg. He said Mr Abbott “denies any problems with the right knee.” A right foot and ankle X-ray showed “some degenerative changes in the ankle as well as the great toe and spurring at the Achilles insertion.” An ultrasound of the right leg in October 2018 indicated “the presence of a haematoma … in the subcutaneous tissue over the tibialis anterior muscle but no evidence of any extensive damage.”

3. Dr Breit diagnosed aggravation of left knee arthritis made permanent by surgery and a “soft tissue injury to the right lower extremity involving the knee.” There was a “subsequent right Achilles partial thickness tear based on stretching in someone who is morbidly obese, a diabetic and with underlying degeneration.” He had “some evidence of right knee arthritis which was “constitutional and unrelated to the injury.” He thought that, given his "abnormal gait pattern” Mr Abbott “may have developed symptoms on that side secondary to overuse.”

4. Notwithstanding Dr Breit’s assessment of Mr Abbott’s right knee and his finding that the condition of his right knee was not “causally connected to the  accepted left knee injury”, the respondent accepted liability in respect of both knees.

5. As to assessment of whole person impairment, Dr Breit assessed “left lower extremity” by reference to the left knee as 20% and deducted 10% for pre-existing degenerative disease. He assessed TEMSKI scarring as 1%. He found “no right lower extremity impairment.”

6. Dr Breit said he disagreed with the manner in which Dr New had undertaken his assessments, in particular his use of gait derangement in respect of the right knee..

Claim letters and responses

1. By letter dated 25 March 2021, Mr Abbott’s solicitors claimed $159,590.00 in respect of 45% whole person impairment, enclosing Dr New’s report of 18 February 2021.[9] The letter refers to a previous letter dated 1 March 2021 which is not in evidence. It did not specifically identify the injury or injuries, or body parts or systems.

   [9] ARD page 13.

2. By further letter dated 4 June 2021, Mr Abbott’s solicitors advised of an amendment to the “initial whole personal claim impairment letter”, claiming 45% whole person impairment in reliance on Dr New’s report, and including a claim for 19% for psychological injury based on a report of Dr Richa Rastogi.[10]

   [10] ARD page 15.

3. On 29 June 2021, the respondent’s solicitors replied, enclosing Dr Breit’s report of 11 May 2021 and offering lump sum compensation of $48,670 “for 19% WPI arising from injuries to the bilateral knees and scarring on 20 September 2018.” By a separate letter dated 2 December 2021, the respondent’s solicitors made an offer in relation to the psychological injury.

4. On 2 February 2023, the present proceedings were commenced in the Commission by ARD claiming whole person impairment of 20% and 27% for the “right lower extremity” and “left lower extremity” respectively, and TEMSKI scarring. Those percentages reflect Dr New's assessment of whole person impairment of the right and left knees respectively.

SUBMISSIONS

The applicant’s submissions

1. Mr Ryan makes the following submissions in support of the contention that the proposed referral should not be amended.

2. Mr Abbott describes in his statement of evidence how roofing material collapsed onto his lower limbs, crushing his legs, consistent with the respondent’s register of injury, the claim form, and the history given to Dr Olschewski three weeks later.

3. Dr New recorded in his first report that Mr Abbott had “soft tissue injuries to his right leg and a haematoma” and pain in his left knee. He assessed whole person impairment of the right knee on the basis of gait derangement and the left knee on the basis of knee replacement. Mr Brown submits that the correct terminology for the knees is “right lower extremity” and “left lower extremity” respectively. He submits that Dr New did not alter his opinion in his supplementary reports but confirmed that Mr Abbott has a “complex altered gait” as a consequence of the injuries.

4. Mr Brown submits that the effect of the above is that Mr Abbott sustained bilateral crush injuries to his lower extremities and the referral should reflect this by remaining in its current form. The fact that Dr New “incorrectly” referred to the knees as opposed to the lower limbs, does not change the position.

5. Mr Brown refers to the paragraph preceding Table 17-5 – Gait Derangement, by which Dr New assessed the right lower extremity, which states:

   “Gait derangement is present with many different types of lower extremity impairment and is always secondary to another condition. An impairment rating due to gait derangement should be supported by pathologic findings, such as x-rays. Except as otherwise noted, the percentage is given in Table 17-5 are for full-time gait derangements of persons who are dependent on assistive devices”.

6. Mr Brown submits that the combined effect of that paragraph and the following paragraph provides that lower limb impairment percents in Table 17-5 “stand alone and are not combined with any other impairment evaluation method”, is that gait derangement is not an assessment of the knee, but of the entire lower limb; it cannot be added to another lower limb impairment such as restriction of motion of the right ankle; in that sense, an assessment of gait derangment is a “holistic assessment of the subject lower extremity, not a particular body part.” Mr Brown submits that restricting the assessment to only the knees would prevent a Medical Assessor from assessing gait derangement as it affects the entire lower extremity, not the knee.

7. Mr Brown relies on the decisions of Deputy President Parker SC in Shankar v Ceva Logistics (Australia) Pty Ltd[11] in particular at [672]-[66], and Deputy President Snell Guzman v Trade West Pty Ltd[12] [2017] NSWCCPD 44 at [59] and [61] in which the presidential members found that, in circumstances where there was no liability dispute, the remaining issue of assessment must be referred to a Medical Assessor and it was a matter for the assessor whether to assess impairment based on gait derangement or by other means.

   [11] Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPIC 18 (Shankar).

   [12] Guzman v Trade West Pty Ltd [2017] NSWCCPD 44 (Guzman).

8. Mr Brown submits that amending the referral as the respondent proposes would prevent the assessment of gait derangement and the soft tissue injuries contemporaneously recorded as sustained in the incident.

The respondent’s submissions

1. The respondent makes the following submissions in support of the contention that the referral to the Medical Assessor should be amended to read “left lower extremity (knee)” and “right lower extremity (knee)”.

2. In his report to Mr Abbott’s solicitors on 18 February 2021, Dr New referred only to examination of the knees; there was no suggestion of any other problem such as with the ankles or hips. His whole person impairment assessment explicitly provides that the body parts/system being assessed are the right knee and left knee. There is no corresponding discussion or explanation as to why he chose to assess the right knee by means of gait derangement. Contrary to the applicant’s submission that Dr New has assessed the whole limb, Dr New does not say this, and it should not be read into his opinion, particularly when Dr New himself described the assessment has been in respect the knees. The respondent submits that, In his subsequent reports, Dr New confirmed his original whole person assessment.

3. The respondent submits that Dr Breit also assessed both lower extremities, knees only.

4. The applicant’s letter of demand makes a claim for lump sum compensation based on Dr New’s report of 25 March 2021. The  letter does not separately refer to the body parts or systems in respect of which the claim is made. Accordingly, the respondent submits, the scope of the claim should be determined by reference to Dr New’s qualified report in which he explicitly assesses impairment of the knees and scarring only.

5. The respondent submits that it replied to the claim letter on 29 June 2021, offering lump sum compensation for 19% whole person impairment arising from injuries to the bilateral knees and scarring. The respondent submits that the exchange of documents between the parties makes clear that the dispute related to the degree of impairment of Mr Abbott’s knees (and scarring) as a result of the injury on 20 September 2018.

6. The respondent disputes that a claim for a lump sum compensation has ever been made in respect of the lower extremities, other than the knees. Dr New’s reports of 24 February 2022 and 6 June 2022 were obtained after the claim was made and after the respondent’s counter-offer was served. There was no response to the offer and at no stage did the applicant seek to expand the scope of the claim or clarify that it was intended to encompass more than the knees and scarring.

7. The respondent submits that s 319 of the 1998 Act provides that a dispute about an assessment impairment is a “medical dispute”, the question of which is reserved for a Medical Assessor.

8. The respondent relies on Skates v Hills Industries Ltd[13] in which Leeming J said:

   “[48] … the fundamental legal concept is a dispute. In the absence of a dispute, the worker and the insurer would not need to go to the Commission. An important category of disputes is medical disputes, and the referral of the medical dispute to an Approved Medical Specialist is but an aspect of the statutory scheme to resolve the dispute…

   [49]   …the infelicity of parts of the covering document cannot stand in the way of the fact that it was the dispute between the parties, crystallised in the documents attached to that covering document, which was referred for assessment in accordance with the statute…

   [50]   …a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.” (emphasis in original).

   [13] Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates).

9. The respondent submits that the parties “competing claims” crystallised in the letter of demand on 18 February 2021 and the letter of offer on 29 June 2021 from which it is clear that the dispute is limited to the degree of impairment arising from Mr Abbott ‘s knees and scarring.

1. The respondent submits that the applicant’s submissions overlook the decisions in Sukkar v Adonis Electrics Pty Ltd,[14] Woolworth Limited v Stafford[15] and Apps v Secretary, Department of Communities and Justice[16] which made clear that, before there can be a referral to a Medical Assessor in respect of a body part, there must first be a valid claim for that body part; there being no valid claim in this case beyond the knees and scarring, the referral should be so restricted.

CONSIDERATION

[14] Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 45.

[15] Woolworth Limited v Stafford [2015] NSWWCCPD 36.

[16] Apps v Secretary, Department of Communities and Justice [2022] NSWPIC 190.

1. Section 4 of the 198 Act defines “claim” as “a claim for compensation … that a person has made or is entitled to make.”

2. The State Insurance Regulatory Authority (SIRA) Guidelines provide that a claim for permanent impairment compensation must include a report from a permanent impairment assessor listed in the SIRA website as trained in the assessment of the relevant part or body system, and must include, relevantly, an “assessment on the part or system of the body being assessed including the percentage of permanent impairment in line with the NSW workers compensation guidelines for the evaluation of permanent impairment …”.

3. Part 7 of the 1998 Act concerns the resolution of “medical disputes” by way of referral to a Medical Assessor. Section 319 provides that:

   “‘medical dispute’ means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with the claim –

   …

   I the degree of permanent impairment of the worker as a result of an injury”

4. Part 7 includes further provisions concerning the assessment of impairments resulting from more than one injury arising out of the same incident.

5. It is common ground in this case that there is a “medical dispute” concerning the degree of Mr Abbott’s permanent impairment.

6. I do not see that the decisions in Shankar and Guzman assist Mr Abbott. Shankar concerned whether there was a “medical dispute” within the meaning of s 319 that could be referred to a Medical Assessor where the specialists qualified by both parties had assessed 0% impairment of the left upper extremity. Guzman makes clear inter alia that the assessment of a “medical dispute” is reserved to a Medical Assessor.

7. In Skates, the worker claimed 18% whole person impairment for injury to his left ring finger and scarring, according to an assessment by his independent medical expert. The respondent’s independent medical expert assessed 12% WPI comprising 11% left upper extremity and 1% for TEMSKI scarring.

8. The worker’s injury was described in the ARD as “injury to left wrist, right finger and scarring”. The “body parts/systems claimed” were “left upper extremity, joint ring finger and scarring”. The Commission issued a referral to an Approved Medical Specialist (AMS) in those terms. The parties subsequently agreed that the left wrist, for which liability had previously been liability, had been inadvertently omitted and was to be included in the referral.

9. Following an initial finding by the AMS that the worker had not reached maximum medical improvement, the Commission issued a proposed referral describing the body parts referred to the AMS as “left upper extremity, joint ring finger and scarring”, omitting the left wrist. Neither party advised that the Registrar that the wrist had been admitted and the referral was issued to the AMS in those terms.

10. The AMS issued a Medical Assessment Certificate assessing the worker for 61% WPI comprising 60% for the left upper extremity including the shoulder, elbow, wrist, and fingers of the left hand including the thumb, and TEMSKI scarring.

11. The matter went to an Appeal Panel and from there to the NSW Supreme Court and the Court of Appeal.

12. The Court of Appeal considered whether the AMS was entitled to assess the degree of permanent impairment arising from parts of the left upper limb which had not been specifically referred. The Court found, relevantly, that the AMS had gone beyond the terms of the referral in assessing permanent impairment of the whole of the worker’s left upper extremity. The Court said he was in error “to assess the degree of permanent impairment in body parts that were not within the ambit of the referral.”

13. The facts in Skates are different from here, the judgment concerning whether the assessor erred in failing to limit his assessment to the terms of the referral and assessing body parts not referred. Relevantly, however, Leeming J said:

    “[44] The starting point is a ‘medical dispute’. That term is defined in s 319 of the [1998 Act] . … The term is defined by reference to the existence of a ‘dispute between a claimant and the person on whom a claim is made’ about any of seven related subject matters including the degree of permanent impairment as a result of an injury, whether the impairment is permanent, whether it is partly due to a previous injury or pre-existing condition and whether it is fully ascertainable. It may be expected that as a consequence of the ordinary operation of the regime at least in most cases the dispute will have been identified by a written exchange of competing claims.” (emphasis in original)

14. At [46] Leeming J said the dispute between Mr Skates and the insurer “was crystallised by the correspondence” attached to his application. That was the dispute which was referred to the Commission.

15. In this case, the claim letter dated 25 March 2021 did not refer to the body parts or systems claimed. It relied on the reports of Dr New dated 18 February 2021.

16. Dr New certified that Mr Abbott had reached maximum medical improvement and set out his assessment of whole person impairment in the table in his report. He described the “body parts or systems” as the “right knee” and the “left knee”, assessed as 20% and 27% whole person impairment respectively. He described the different tables he used in his assessment of each.

17. Section 319 provides that a “medical dispute” includes a dispute concerning the degree of permanent impairment of the worker as a result of an injury. The method of assessment of impairment is a matter for the Medical Assessor.

18. Dr New clearly assessed the impairment arising from Mr Abbott’s injury to his right knee and left knee. Dr Breit did the same, although he found “no right lower extremity impairment.”

19. References to “left lower extremity” and “right lower extremity” do not of themselves define the nature of the injury in dispute. Nor does the reference in the ARD to a claim for permanent impairment of “right lower extremity“ and “left lower extremity”. I note that the ARD makes claim for permanent impairment in precisely the percentages identified by Dr New in his assessment.

20. It is clear from their reports that both Dr New and Dr Breit assessed the impairment of Mr Abbott’s right and left knees. That was the injury as they understood it to be. The respondent’s offer, based on Dr Breit’s assessment, was for “injuries to bilateral knees and scarring”. The respondent points out, correctly, that Dr New’s reports of 24 February 2022 and 6 June 2022 were obtained after the claim was made and after the respondent’s counter-offer was served. There was no response to the offer and at no stage did the applicant seek to expand the scope of the claim or clarify that it was intended to encompass more than the knees and scarring. The fact that Dr New assessed the right knee by reference to gait derangement as a method of assessment does not alter that fact, and I note that Dr Breit considers he was in error to use that method of assessment.

21. I agree with the respondent’s submission that the correspondence between the parties “crystallised the dispute” to one concerning the percentage impairment of injury to Mr Abbott’s right knee and left knee, as well as TEMSKI scarring. That was the dispute that was referred to the Commission and which is now to be referred to a Medical Assessor.

22. The matter is to be remitted to the President for referral to a Medical Assessor to assess the degree of whole person impairment as follows:

    Date of injury:                   20 September 2018

    Body parts/systems:         Left Lower Extremity (knee), Right Lower Extremity (knee),

    Scarring (TEMSKI)

    The documents to be referred to the Medical Assessor are:

    The Application to Resolve a Dispute and attachments,

    The Reply and attachments,

    A copy of this Determination.