Albury City Council v Mitchell
[2023] NSWPICMP 688
•20 December 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Albury City Council v Mitchell [2023] NSWPICMP 688 |
| APPELLANT: | Albury City Council |
| RESPONDENT: | Jan Mitchell |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | James Bodel |
| MEDICAL ASSESSOR: | Margaret Gibson |
| DATE OF DECISION: | 20 December 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; whether deduction of one quarter Medical Assessor (MA) made under section 323(1) was an error and based on the application of incorrect criteria; Appeal Panel held MA made assessment based on correct criteria and deduction he made under section 323(1) was open to be made for reasons MA explained and was therefore not an error; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 28 September 2023 Albury City Council, the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Mark Burns, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 4 September 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
Jan Mitchell, the respondent, is employed by the appellant as a vegetation management officer. On 1 May 2015 she was required to inspect the Nail Can Hill Reserve in Albury. This required her to walk down a steep slope. While doing so she slipped on a rock which caused her legs to give way. She felt a “pop” in her right knee and immediate pain.
An X-ray and an MRI scan of her right knee were done on 6 May 2015. The impression of the radiologist who reported on the MRI scan was:
“1. Tear in the body of the medial meniscus and slight outward extrusion of tile medial meniscus noted. Minimal tricompartmental osteoarthritic change is identified. A moderate sized joint effusion is noted.
Cruciate ligaments are intact.
2. Likely benign 8mm lesion metaphysis lateral tibial plateau. This is radiographically occult. If symptoms in this region consider bone scan correlation. The MRI appearance is non specific.”
The respondent’s general practitioner (GP) referred the respondent to orthopaedic surgeon Dr Elie Khoury, whom the respondent consulted on 25 May 2015. Dr Khoury recommended she have an arthroscopic partial meniscectomy, which Dr Khoury performed on 18 June 2015. Dr Khoury reported making the following findings at surgery:
“Degenerate posterior horn tear right medial meniscus.
Grade 3 medial femoral condylar chondral ulcer.
Grade 2 chondral ulcer lateral femoral condyle with grade 2/3 chondral degeneration of the tibia.
Patello- femoral grade 3 OA changes.
Cruciate ligaments and lateral compartment normal.”
The respondent initially had good results from her surgery but over the next two years her right knee deteriorated resulting in her experiencing further pain and discomfort. By 2017 she was experiencing problems with both knees. She again consulted Doctor Khoury on 16 August 2017. He recommended she have bilateral total knee replacements simultaneously. That was done on 27 September 2017.
On 26 May 2022 orthopaedic surgeon Dr Todd Gothelf examined the respondent at the request of her solicitors to provide a report relating to several aspects of the respondent’s injury to her right knee, including the degree of permanent impairment she had resulting from that injury.
In a report dated 3 June 2022 Dr Gothelf advised he assessed the respondent had 20% whole person impairment relating to her right knee. Doctor Gothelf also said that the respondent had a pre-existing arthritis. Dr Gothelf said that he had viewed X-rays from 2017 and that enabled him to measure the cartilage interval in the knee then as 2 millimetres. He said that because of that, he could assess an impairment for arthritis under Table 17-31 of AMA 5, which he said was 20% left upper extremity impairment which converts to 8% whole person impairment (WPI). He deducted that 8%WPI from the 20% WPI that he had assessed the respondent had relating to her right knee and he advised that the respondent had 12% WPI from her injury to her right knee. He also assessed the respondent had 1% WPI due to scarring. He advised therefore the final WPI of the respondent had from her injury was 13% WPI.
On 14 July 2022 the respondent’s solicitors wrote to the appellant’s insurer advising them that the respondent claimed compensation from it under s 66 of the Workers’ Compensation Act 1987 (the 1987 Act) for 13% WPI. The respondent’s solicitors advised the respondent relied on the report of Dr Gothelf dated 3 June 2022. The respondent’s solicitors provided the insurer with a copy of that report.
Thereupon the insurer arranged for the respondent to be examined by orthopaedic surgeon Associate Professor Paul Miniter on 5 September 2022. In a report dated 27 September 2022 Associate Professor Paul Miniter advised he assessed the respondent had 15% WPI relating to her right knee. He advised that “the matter itself is not related to the workplace”. He advised that he did not believe that the respondent’s injury materially contributed to the need for the respondent’s right knee replacement. He considered that “a 100% deduction” should be made, such that he assessed that the respondent had no permanent impairment from her injury.
On 20 December 2022 the insurer wrote to the respondent, care of her solicitors, notifying her under s 78 of the 1998 Act that it denied liability for her claim for compensation under s 66.
The respondent then instituted a proceedings in the Personal Injury Commission (Commission) seeking determination of her claim. A delegate of the President of the Commission referred the matter to the Medical Assessor.
As said, the Medical Assessor issued the MAC on 4 September 2023. In that, he certified that he assessed the respondent had 20% WPI resulting from her injury. He also said that the respondent had pre-existing osteoarthritis and he assessed that one quarter of her permanent impairment resulting from her injury to her right knee was due to that. The Medical Assessor made a deduction under s 323 (1) of the 1998 Act on account of that, such that he assessed the respondent’s permanent impairment from the injury to her right knee is 15% WPI.
The explanation the Medical Assessor provided for the deduction he made under s 323(1) is contained within Parts 10 b, 11 b and 11 c of the MAC, and are as follows:
“10 b …
I note though that when she was operated on only several months after the injury
there was evidence of moderately severe degenerative change with grade 3 medial
femoral condyle chondral ulceration in the knee. Even though her knee was previously asymptomatic there is obvious evidence of degenerative change, which was long standing. This degenerative change contributed to her need for a total knee replacement. I therefore believe that a deduction of one tenth is against the evidence and would make a deduction of one quarter. Her 20% would thus become 15% whole person impairment.”
“11 b Whilst her right knee was asymptomatic examination findings within 1 – 2
months of the injury showed moderately severe osteoarthritis pre-existing.
Her total knee replacement was eventually done due to significant osteoarthritis. It was not done due to the medial meniscal tear that she sustained in 2015.”
“11 c At operation in June 2015, she was noted to have a significant degenerative change over the medial femoral condyle with marked ulceration of the chondral cartilage.”
The Medical Assessor also observed, with respect to the deduction under s 323 (1), that the method Dr Gothelf applied to make the deduction involved a methodological error. That error was, in essence, that Dr Gothelf adopted a linear approach by subtracting what her impairment would have been in 2017 from what he assessed her impairment of her right knee was at the time he examined her.
The Medical Assessor, when detailing his observations about the manner in which Dr Gothelf applied the deduction, also said a deduction of “two fifths was too great for the amount of degenerative change which was present at the time she had her injury to the right the knee”. The Medical Assessor again said that he considered a “one quarter deduction is more appropriate”.
The Medical Assessor also assessed the respondent had 1% WPI due to scarring from her operation, which when combined with the 15% WPI he assessed her to have from the injury relating to her right knee, combined to 16% WPI. He certified that was the degree of the respondent’s permanent impairment 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 did not require the respondent to undergo a further medical examination. This is because the Appeal Panel, for reasons explained below, found that none of the grounds for appeal on which the appellant relied was established. Consequently, the Appeal Panel would be confirming the MAC and did not need to re-assess any part of the medical dispute that had been referred for assessment. In other words it did not need any further clinical data to deal with the appeal. Further, absent the Appeal Panel finding error in the MAC, the Appeal Panel has no power to examine the appellant.[1]
[1] NSW Police Force v Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 at [33]; Ziraki v The Australian Islamic Liverpool Area [2019] NSWSC 1158 at [74]; Coenradi v the GEO Group Australia Pty Ltd [2002] NSWSC 864 at [134]; and Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [125]-[130].
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 submitted that the Medical Assessor made his assessment of the respondent’s permanent impairment based on incorrect criteria because the Medical Assessor failed to apply a greater deduction under s 323 (1) of the 1998 Act than one-quarter for the proportion of the respondent’s permanent impairment that was due to her pre-existing right knee condition. The appellant submitted that the deduction should have been “at least 50%”.
The appellant highlighted various parts of the MAC in which the Medical Assessor had noted the investigations that had been done on the respondent’s right knee that revealed the osteoarthritic changes in her right knee. The appellant also referred to Dr Khoury’s finding regarding the degenerative osteoarthritis in the respondent’s right knee. The appellant referred to the Medical Assessor’s finding that the respondent had sustained a tear to her medial meniscus and aggravated pre-existing asymptomatic osteoarthritis in the injury she suffered on 1 May 2015 and to his observation that when she subsequently went to surgery after the injury moderately severe degenerative changes were found in her right knee. The appellant also referred to the Medical Assessor’s finding that the degenerative changes in the respondent’s right knee contributed to her knee for a total knee replacement. The appellant said the Medical Assessor found that the respondent’s total knee replacement was done due to significant osteoarthritis and was not done due to the medial meniscal tear that she sustained in 2015.
The appellant submitted that those observations and findings of the Medical Assessor warranted a deduction of 50 to 100% being made under s 323 (1) for the proportion of the respondent’s permanent impairment due to her pre-existing condition. The appellant submitted that “the Medical Assessor himself has confirmed the right knee surgery is due to a pre-existing condition and not the workplace injury sustained in 2015”.
The appellant referred to various authorities relating to s 323 and submitted that the Medical Assessor did not apply the correct tests that these authorities established with respect to a deduction under s 323 (1).
In reply, the respondent submitted that the appellant’s submission that the Medical Assessor found that her right knee replacement surgery was solely due to her pre-existing condition and not the workplace injury was incorrect. The respondent highlighted that the Medical Assessor found that she had suffered a tear to the medial meniscus of her right knee that aggravated pre-existing asymptomatic osteoarthritis.
The respondent submitted that the Medical Assessor applied the correct criteria to assess her permanent impairment. The respondent submitted that the appellant did not identify how the Medical Assessor applied incorrect criteria.
The respondent submitted that the Medical Assessor’s assessment was not contrary to any of the material. The respondent submitted that the Medical Assessor was aware of the relevant facts.
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 rejects the appellant’s submission that the Medical Assessor based on his assessment on incorrect criteria with respect to the issue of the deduction to be made under s 323 (1) of the 1998 Act. This is simply because the Medical Assessor applied s 323(1) to make the deduction.
The Appeal Panel also considers that the Medical Assessor adopted the correct approach when applying s 323 (1). That is, the Medical Assessor firstly established what the level of the respondent’s permanent impairment was from her injury at the time of assessment; secondly, he considered whether a proportion of that permanent impairment was due to a pre-existing condition, which the Medical Assessor identified as a pre-existing osteoarthritis; and thirdly, he assessed what that proportion was.
The Medical Assessor did not base his consideration of what deduction was to be made under s 323 (1) on assumption or hypothesis, but on his analysis of the relevant evidence.
The Appeal Panel notes that this evidence established, in summary, that the respondent had significant degenerative change in her right knee at the time of her injury. At that time she had not had any symptoms in her right knee and no impairment in her right knee. That is to say, there was no adverse impact from her pre-existing condition on the function of her right knee. The injury that she suffered on 1 May 2015 resulted in a meniscal tear and an aggravation of her existing osteoarthritis. There was a progression in her osteoarthritis in her right knee following her initial surgery. That coupled with the continuation and progression of the respondent’s symptoms necessitated a right knee replacement.
The Medical Assessor explained that given the extent of the degeneration at the time the respondent suffered her injury, a deduction of two-fifths, in his clinical judgement, would be too great. He considered a deduction of one-quarter would be more appropriate given the degeneration that existed in her right knee at the time of examination.
The Appeal Panel considers it was open to the Medical Assessor to form that opinion based on the material that was before him and which he detailed in the MAC. His conclusion was not devoid of support from the evidence before him. He explained cogently, in the Appeal Panel’s view, the reasons why he concluded the deductible proportion under s 323 (1) was one-quarter.
The Appeal Panel, which is an expert panel, also observes that the meniscectomy that the respondent had on 18 June 2015, which was to treat the injury she suffered on 1 May 2015, would have accelerated the progression of her osteoarthritis. It was not trivial injury that the respondent suffered. The symptoms consequent upon that injury brought forward, in all likelihood, her need and consequently the timing of her right knee replacement surgery by a significant order. In the Appeal Panel’s view that provides further reason to support the conclusion that the deductible proportion for the purposes of s 323 (1) ought not to be more than one-quarter.
The Appeal Panel rejects the appellant’s submission that the Medical Assessor “confirmed” that the respondent’s right knee replacement was due solely to the osteoarthritis in her right knee. It is apparent when the MAC is read as a whole that the Medical Assessor was of the view that the surgery was due the respondent’s osteoarthritis becoming symptomatic as a consequence of her injury and also as a consequence of her injury accelerating the progression of her osteoarthritis.
For these reasons, the Appeal Panel has determined that the MAC issued on 4 September 2023 should be confirmed.
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